INTERNATIONALCOURT OFJUSTICE
CASECONCERNINGOILPLATFORMS
(ISLAMICREPUBLICOFIRANV. UNITED STATESOFAMERICA)
REJOINDER
SUBMITTEDBY
THEUNITEDSTATES OFAMERICA TABLE OF CONTENTS
REJOINDER OF THE UNITED STATES OF AMERICA
INTRODUCTION .......................................................
PART 1 STATEMENT OF FACTS ...............................
INTRODUCTION .......................................
CHAPTER 1 IRAN ATTACKED U.S.ANDOTHER NEUTRAL
SHIPPING IN THE GULF ANDUSED ITS OIL
PLATFORMS IN THESE ATTACKS ......................
Section 1. Iran Systematically and Deliberately Attacked U.S.
and Other Neutra1Shipping ...............................
Section 2. Iran Used its Oil Platforms in its Attacks on U.S.and
Other Neutra1Shipping ..................................
A. The Iranian Exclusion Zone and the Channel for
Neutral Shipping ........................................
B. The Iranian Navy's Own Documents Confirm Iran's
Useofthe Platforms to Collect and Disseminate Military
Intelligence on the Movements of Foreign Shipping in the
Gulf ...................................................
C. The International Shipping Community Was Aware
of Iran's Use ofitsl Platforms in itsAttacks on U.S.
and Other Neutral Shipping ..............................
D. Iran's Assertions About the Character of the Platforms
Do Not Refute the Evidence of Their Use in its Attacks on
U.S. and OtherNeutra1Shipping ..........................
1. The Platforms Did Not Require Technologically
Advanced Equipment to Perform Their Military Role ......
(b) Communications equipment ........................
(c) Helicopter landingpads............................ 2. The Military Equipment Iran Placed on the Platforms
Could be Used Offensivelyas Well as Defensively ..........
CHAPTER II IRAN OPPOSED THE INTERNATIONAL COMMUNITY'S
EFFORTS TO PROTECT NEUTRAL SHIPPING FROM
IRANIANATTACKS ...................................
Section1. The International Response to Iran's Attacks on
Neutral Shipping ........................................
A. Reflagging .............................................
B. Naval Escorts and Minesweepers ..........................
Section 2. Iran's Opposition to Efforts to Protect Neutra1 Shipping......
CHAPTER III IRAN IS RESPONSIBLE FOR THE ATTACK ON
SEAISLECITY ........................................
Section 1. The Evidence Demonstrates Iran's Responsibility for the
Attack on Sea Isle City ...................................
Section 2. Iran Used the Rostam Platform to Monitor andReport on
the Movements of Sea Isle City.............................
Section 3. Iran's Pattern of MissileLaunches from the Faw
Area is Consistent with its Acknowledged Policy of
Targeting Kuwait's Oil Trade .............................
Section 4. Iran's Efforts to Deny its Responsibility are Inconsistent
andIncredible ..........................................
Iran's Shifting Story on the Existence of Missile Sites
intheFawArea .........................................
Iraq Did Not Maintain a MissileLaunching Site in the
Faw Area at the Time of theAttack on Sea Isle City ...........
Iraq Could Not Have Attacked Sea Isle CityUsing a
Missile That Traveled Along a Circuitous Path ...............
The MissileThat Hit Sea Isle City Was Not Launched
FromtheAirorSea .....................................CHAPTERIV IRAN IS RESPONSIBLE FOR THE ATTACK ON
THE USSSAMUEL B. ROBERTS ......................... 48
Section 1.The Evidence DemonstratesIran's Responsibility for the
Aîtack on theSSSamuel B. Roberts....................... 48
Section 2.Iran's Denial of Responsibility for Mining is Refuted by
the Evidence and Conclusions of the International
Shipping Community .................................... 49
Section 3.Iraq is not Responsible for the Attack on the
uss ~amhelB. ~oberts................................... 52
CHAPTER V THE UNITED STATES TOOKLIMITED, LAWFUL
DEFENSIVE MEASURES AGAINST IRANIAN
OFFSHORE OIL PLATFORMS IN RESPONSE TO
IRAN'S ATTACKS ON SEA ISLE CITY AND
USSSAMUELB. ROBERTS .............................. 54
PART II THE COURT SHOULD DENY IRAN THE RELIEF
IT SEEKS BECAUSE OF IRAN'S OWN ILLEGAL
CONDUCT .............................................57
INTRODUCTION .......................................
CHAPTER 1 THE COURT SHOULD DENY RELIEF TO IRAN
BECAUSE IRAN ACTED IMPROPERLY WITH
RESPECT TO THE SUBJECT MATTER OF THE
DISPUTE ..............................................58
CHAPTER II THE COURT SHOULD DENY RELIEF TO IRAN
BECAUSE IRAN ITSELF VIOLATED OBLIGATIONS
IDENTICAL TO THOSE THAT ARE THE BASIS FOR
ITSAPPLICATION .................................... 61
CHAPTER III THE COURT SHOULD DENY RELIEF TO IRAN
BECAUSE THE UNITED STATESACTIONS WERE
TAKEN IN SELF-DEFENSE AS A RESULT OF
IRAN'S OWN ILLEGAL CONDUCT ...................... 64PART III THE UNITED STATES DID NOT VIOLATEDARTICLE X(l)
OF THE 1955TREATY BECAUSE THE ATTACKS
ON THE PLATFORMS DID NOT AFFECT "COMMERCE"
THATWAS "BETWEEN THE TERRITORIES" OF IRAN AND
THE UNITED STATES ..................................
INTRODUCTION .......................................
CHAPTER 1 THE COURT'S 1966JUDGEMENT DID NOT DECIDE
WHETHER THE EXTRACTION OF CRUDE OIL AT
THE IRANIAN PLATFORMS CONSTITUTES
"COMMERCE" WITHIN THE MEANING OF THE
1955TREATY ..........................................
CHAPTER II THE EXTRACTION OF CRUIDE OIL AT THE
IRANIAN PLATFORMS IS NOT "COMMERCE"
WITHIN THE MEANING OF ARTICLE X(l) OF
THE1955TREATY .....................................
Section1. The Term "Commerce" in Article X(l) Refers to
"Maritime Commerce" ...................................
The Context of Article X(l) ShowsThat it Relates to
Maritime Affairs ........................................
The History of Article X(l) Reinforces its
Maritime Character .....................................
Section 2. Even a Broad Interpretation of the Term "Commerce"
Would Not Sustain Iran's Interpretati....................
A. The Oscar Chinn Case ....................................
B. Definitions .............................................
C. United States "Commerce Clause" Jurisprudence.............
Section3. "Freedom of Commerce" Within the Meaning of the 1955
TreaQ also Does not Include the Oil Extraction Activities
of the Platforms.........................................CHAPTER III DURING THE RELEVANT PERIOD, IRANIANOIL
FROM THE PLATFORMS WAS NOT PART OF
"COMMERCE" "BETWEEN THE TERRITORIES"
OF IRAN ANDTHE UNITED STATES, ASREQUIRED
UNDER ARTICLE X(l) OF THE 1955TREATY ............
Section 1. The Oil Platforms Were Not Engaged in Maritime
Commerce .............................................
Section2. The Oil PlatformsWere Not Engaged in "Commerce"
Even Under an Interpretation of theTerm Not Limited
to MaritimeCommerce ...................................
A. The Function of Iran's Oil Platforms Did Not Include the
Production of Crude Oil in a Form Capable ofBeing
Exported, and Thus Did Not Involve Commerce .............
B. Neither the Platforms Nor the Pipelines Possesseda
Transport Function Within the Meaning of
"Commerce" in Article X(l) ...............................
C. OiUGasSeparation on the Platforms DoesNot
Constitute the Improvement of a Good Within the
Meaning of "Commerce" Under Article X(l) ................
Section3. The Activitiesof Iran's OilPlatforms Did Not Relate
to Commerce "Between the Territories" of Iranand
the United States........................................
A. The U.S.Embargo Prevented Iran from Exporting Oil
from the Platforms to Customers in the United States
During the Relevant Time Period ..........................
B. Iran's Assertions About U.S. Purchases of Petroleum
Products From Western Europe are Irrelevant ..............
1. The Odell Report Describes Iranian Oil Salesto
Western Europe, Not to the United States.................
2. Iran's Oil Sales to Western EuropeHad No
Connection with the Territory of the United States........
(a) Transactions between U.S. buyers and Western
European sellers had no connection with the
territoryofIran .................................. (b) The goodsthat U.S. bought from Western
Europe constituted different products than
those Iran sold to Western Euro...................
C. Damage to the Platforms Had NoEffect on the Amount
ofOilIranProduced .....................................
PART IV ARTICLE XX(l)(d) OF THE 1955TREATY EXCLUDES
FROM ITS OPERATION ANDAPPLICATION THE U.S.
ACTIONS AGAINST THE OIL PLATFORMS ..............
INTRODUCTION ......................................
CHAPTER 1 THE UNITED STATES ACTIONS WERE
"NECESSARY ...TO PROTECT ITS ESSENTIAL
SECURITY INTERESTS" ...............................
Section1. The Ordinary Meaning of Article XX(l)(d)..................
Section2. Iran Threatened "Essential Security Interests" of the
United States and the U.S. Actions to Protect Such
Interests Were Necessary................................
Section3. Iran's Interpretation of Article)(d) Deprives it of
Meaning, Contrary to Basic Principles of Treaty .........
CHAPTER II THE COURT SHOULD ALLOW THE PARTY
INVOKING ARTICLE (l)(d) A MEASURE OF
DISCRETION IN ITS APPLICATION .....................
Section 1. Sound Legal Principles Support According a Measure of
Discretion tothe Party Invoking Article XX(l).............
Section 2. Discretion is an Established Judicial Prin................
Section3. The Nicaragua Judgment Supportsthe Principle of
Discretion of the Party Invoking Article XX(l)............
CHAPTER III THE APPLICATION OF ARTICLE XX(l)(d) WOULD
OBVIATE ANYNEED TO RESOLVE QUESTIONS
RELATED TO THE LAW OF SELF-DEFENSE ............
PART V U.S. ACTIONSAGAINST THE OIL PLATFORMS WERE
LEGITIMATE ACTIONS IN SELF-DEFENSE UNDER
ARTICLE 51 OF THE UN CHARTER ..................... INTRODUCTION ....................................... 141
CHAPTER 1 IRAN'SARMED ATTACKS ON U.S. VESSELS GAVE
RISE TO THE RIGHT OF THE UNITED STATES TO
TAKE ACTION IN SELF-DEFENSE UNDER
ARTICLE51 ...........................................
Section 1. The "Armed Attack" Requirement of Article 51 of the
UNCharter .............................................
Section 2. Iran's Armed Attack on Sea Isle Ci........................
A. Iran's Attack on Sea Isle Citywas an "Armed Attack"
UnderArticle51 .........................................
Iran's Contention That a MissileAttack on a Single
Merchant Ship is, as a Rule, Not an "Armed Attack"
is Unavailing in Law and Dangerous in Practi...............
1. Small-ScaleAttacks Can Be "Armed Attacks" .............
2. Iran's Attack On A SingleMerchant ShipWas An
"Armed Attack" On the United States ...................
Iran's Argument That a Vesse1Must Be "Specifically
Targeted" to Amount to an "Armed Attack" is Spurious ......
It Makes NoDifference That Sea Isle City Was Attacked
in Kuwaiti Territorial Waters............................
Iran Committed an Armed Attack Against the
Section 3. USSSamuelB.Roberts ...................................
CHAPTER II THE U.S.ACTIONS TO DEFEND ITSELFMET ALL
APPLICABLE RULES CONCERNING THE USE OF
FORCE IN SELF-DEFENSE .............................
Section 1. The Elements of Legitimate Self-Defense....................
Section 2. The U.S.Responses in Self-DefenseWere Necessary ..........
A. Iran's Covert, Surprise Attacks Shaped the Timing
of the ResponsesTaken by the United States Against
the Oil Platforms........................................
vii B. The Oil PlatformsWere Lawful Targets ....................
C. There Were No Peaceful Alternatives......................
Section 3. The U.S. Actions in Self-Defense Were Proportiona.........
CHAPTER III CONCLUSION: THE U.S. ACTIONS AGAINST THE
PLATFORMSCOMPLIED WITH THE RULES OF
SELF-DEFENSE AND CANNOT BE CHARACTERIZED
ASREPRISALS ........................................
PART VI COUNTER-CLAIM .....................................
INTRODUCTION ......................................
CHAPTER 1 IRAN'S ILLEGAL ATTACKS ON
NEUTRALSHIPPING ...................................
CHAPTER II IRAN VIOLATED ITS FREEDOM OF COMMERCE
AND NAVIGATION OBLIGATIONS UNDER
ARTICLE X(l) OF THE 1955TREATY ....................
Section1. Iran Violated Article X(l) Because Its Attacks on U.S.
ShippingImpeded Protected Commerce and Navigation .......
A. There Was SubstantialMaritime Commerce and
Navigation Between Iran and the United State..............
B. Iran Created Conditions ThatWere Dangerous and
Detrimental to U.S. Maritime Commerce and Navigation ......
C. Commerceede.............................................
D. This Court's Decision in the Nicaragua Case Further
Supports a Finding That Iran's Actions Impeded
Commerce and Navigation ................................
Volume of Trade is Not the Correct Measurement of
Whether Commerce and Navigation was Impeded ............
The Meaning of "Between the Territories of the Two
High Contracting Parties" in Article X(...................
Vlll Section . Iran Violated the Freedoms Guaranteed Under
Article X(1). asInformed by ArticX(5) ....................
Section . The U.S. Reflagging Was Proper ...........................
Section . The U.S. Claim for U.S. Ships is Prope.....................
Section5. Iran's Reservation Under Article XX(l)(d)..................
CHAPTER III IRAN HAS NOT DEMONSTRATED A VALID
DEFENSE TO THE COUNTER-CLAIM ...................
Section 1. Iran's Actions Were Not Justified Under
InternationalLaw .......................................
A. Iran Has Not Demonstrated a Valid Claim of Self-Defense
With Respect to U.S. and Other Neutra1 Vessel..............
B. Iran's ActionsViolated the Law of Armed Conflict...........
Section . Damages Will Be the Subject of a Subsequent Proceeding......
SUBMISSIONS .......................................................... REJOINDER OFTHEUNITED STATESOF AMERICA
INTRODUCTION
1.01 In its Judgment of 12December1996,the Court found that it hasjurisdiction, onthe
basis of ArticleXXI, paragraph 2, ofthe 1955Treaty of Amity, Economic Relations and
Consular Rights between the United Statesand Iran (hereinafter"1955Treaty") to entertainthe
claims madeby the Islamic Republicof Iranunder Article X,paragraph 1,of that Treaty. On 23
June 1997,the United States filed its Counter-Memorialand Counter-Claim (hereinafter
"Counter-Memorial"). In its Orderof 10March 1998,the Court foundthat the counter-claim"is
admissible as such and forms a part ofthe currentproceedings". Iran filed its Replyand Defence
to Counter-Claim (hereinafter "Reply") on 10March 1999. This Rejoinder responds to Iran's
Reply .
1.02 TheUnited States will argue inthis Rejoinder that there remain four independent
grounds uponwhich Iran's claim shouldbe rejected in its entirety. First, the Courtshould deny
relief to Iranbecause of Iran's own repeatedillegal conduct. Second,the Court shoulddetermine
that the actionsofthe United Statesdid notviolate Article X,paragraph 1,ofthe 1955Treaty,
because these actions did not impedethe freedomof commercebetween the territoryof Iran and
the territory of the United Stateswithinthe meaning ofthat provision. Third, the Court should
find that the actions of the United Stateswere necessaryto protectthe essential securityinterests
of the United States, and accordinglywere excludedfromthe reach of the 1955Treatyby Article
XX,paragraph l(d). Finally, the Courtshouldfind that the actions of the United Stateswere not
wrongful becausethese actions weretaken in lawful self-defensein response to illegal armed
attacks by Iran. The United Stateswill not repeatin this Rejoinder each assertionthatt hasmade previously in these proceedings;unless otherwiseindicated in this Rejoinder, it
incorporates such assertions intothis pleading by meansofthis reference.
1.03 The final Part of this Rejoinder addressesthe issuesraised by Iran with respectto
the counter-claim of the United States. NotwithstandingIran's resortto arguments in its Reply
which areplainly inconsistent with the positions ithas taken with respect to its own claim,the
United Stateswill demonstrate in this Part that Iran's illegalconduct was dangerousand
detrimentalto maritime commerceand impeded the freedomsof commerceand navigation
between Iran and the United Stateswithinthe meaningofthe 1955Treaty. It will demonstrate
further that the defenses put forwardby Iran for itsillegalconduct are withoutmerit.
1.04 As will become clear inthe course of a reviewofthis Rejoinder,Iran seeks in this
proceedingto invoke the legalresponsibilityof theUnited Stateswith respectto circumstances
and conduct for which Iran itself was plainly and ultimatelyresponsible. Iran seeks to disguise
its responsibility, in some cases,by false representationsto this Court, and in others, by
incompleteand misleading representations. Iran'srepresentationsare beliedby the protests
submitted to Iran by numerous countries, the statements ofits own officiais,reports in
authoritativesources, the statementsand actions ofthe international shippingcomrnunity,
accounts of eyewitnesses, photographic evidence, physicalevidence and interna1Iranian
govenunent documents. TheUnited States urgesthe Courtto review carefullyIran's conduct in
thismatter, and to attribute responsibility inthis proceedingto that State which should
appropriatelybear it. PART1
STATEMENT OF FACTS
INTRODUCTION
1.O1 Although the Parties to this case have submitted detailed and voluminous evidence
to the Court, the basic facts of the caseare simple: Iran launched illegald attacks on U.S.
ships and cargoas part of its carnpaignof attackingneutral shippingduring the Iran-IraqWar,
and these attacks compelled the United Statesto take legitimate and necessary actionsboth in
self-defense andto protect essentialU.S. securityinterests.
1.O2 Between 1984and 1988Iran systematicallyand deliberately attacked ships
traveling in the Gulf from the United Statesand from other countriesthat were neutral in Iran's
war with Iraq. Over 200 ships from 31neutral countries were victimsof Iran's attacks'. At least
63 people died as a result of these attacks; 99morewere wounded2. U.S. ships which Iran
attacked included Bridgeton,Sungari, Sea Isle City,Lucy,EssoFreeport, Diane, Esso Demetia,
and USSSamuelB. Roberts.
1.O3 In response to Iran's unprovokedand ongoing attackson U.S. shipping, the United
States took limited self-defense actions againstthree offshoreIranian oil platform complex-s
'See U.S.Counter-Mernorial 23 June 1997(hereinafter"Counter-Memorial")p,ara.1.04.
Ibid.Staternentof Capt. Christian FeyerPuntewold, 15January1997,and attachments,Exhibit 11.
Exhibits1-179werefiledwiththe Counter-Mernoria alndExhibits180-261are attached to this Rejoinder.Rostam, Sassan,and Sirri - that Iran had used in its attackson U.S. and otherneutral shipping in
the Gulf.
1.O4 Iran bears sole responsibilityfor its illegal armedattacks on U.S. shipping and it
cannot complainof the U.S. actionsin self-defensethatresulted from them.
1.O5The evidence ofIran's illegal actionsisclear. It was well-establishedwithin the
internationalshipping comrnunitythat Iran was attackingU.S.and other neutralshipping, and
that Iran usedits oil platforms inthese attacks. Eyewitness accounts of Iran's illegal actions
make these facts undeniable. Shippingcompaniestookcostly steps to avoidIran's attacks.
Nations fromaround the worldprotested Iran's attacks andsent military shipsto the Gulf to
protect neutralshipping fromthose attacks. The UnitedNations Security Council,the Arab
League, andthe Gulf CooperationCouncil condemnedIran's attacks.
1.O6Iran asks this Courtnot to believe this internationalconsensus and the substantial
evidence demonstrating Iran's wrongdoing. Instead,Iran offersthis Courta series of
unsupported conjectures, manyof which are demonstrablyfalse, in an effortto cast doubt on its
responsibilityfor its attacks onneutral shipping. As thisRejoinder will demonstrate,Iran's
efforts to escapethe consequencesof its illegal actionsare simply not credible. But Iran has
compounded its credibility problemby making assertionsabout factual matters atissue in this
case that failto withstand evencasual scrutiny. Indeed,someof Iran's statementsraise questions
as to whetherany serious effortswere made to ascertaintheir truthfùlness. A few particularly
glaring examples,discussed inmore detail below, illustratethe point: Iran categorically denied the existenceof Iranian-controlled missile launching siteson
the Faw peninsula3,only to be forcedto abandonthis denial when confionted with
photographic evidence showing an activecruisemissile staging facility in Iranian
controlled territory in the Faw area4.
Iran has assertedthe existence ofan Iraqicontrolled missile siteat a location on the
Faw peninsula5,when photographic evidenceclearly indicatesthat nosuch site
existed atthat location at that time6.
Iran has deniedthat it laidmines in internationalwatersinthe Gulf7,when
photographic evidence and eyewitnessaccounts document the Iran Ajr in the act of
laying mines in international waters at the timeit was capturedby U.S. forces8.
Iran's Memorial, 8June 1993(hereinafter "Memorial"),para. 4.74 ("There was, in fact, no Iranian
rnissile-site inthe Fao peninsul...")In a numberof instances Iranhas adopted different spellings of
certain propernouns than those used by the United States in its Counter-Mernorial. In this Rejoinder,the
United States will continue to use the spellingsadopted inthe Counter-Mernorial.
Reply and Defenceto Counter-Claim, 10March 1999(hereinafter "Reply"),para. 4.19.
Ibid., para. 4.29.
Inj?a, para. 1.55.
7Reply, paras. 5.20-5.21.
Counter-Memorial, paras. 1.40-1.47. 1.O7 Disregardingthis Court's prior decisions9, Iran has pleaded with the Court to ignore
various statements made by its officiaisadmitting Iran's illegal actions, arguing that the Court
should not deem such statements to be reliable because they were made in time of war
"necessarily withpolitical and other considerations in mind"." In fact, the false, misleading, and
incredible nature of many of the assertions in Iran's pleadings suggests that the Court should
view Iran's other representations in this case as being of a similar character.
1.O8Iran also attempts to use these proceedings to assign blame for thewhole of the
Iran-Iraq War. Iran seemsto suggest that fault for itsdeliberate decision to target neutral
shipping properly rests, inter dia, with Iraq (for being Iran's enemy in the war and attacking
See Military and ParamiIitary Activities in and against Nicaragua (Nicaraguav. UnitedStates)
(hereinafter "Nicaraguar~M , erits, Judgment,1C.J. Reports 1986,para. 64 ("The Courttakes the view
that statements of this kind, emanatingfrom high-ranking official political figures,sometimes indeed of
the highest rank, are of particular probative value when theyacknowledge facts or conduct unfavourable
to the State represented by thepersonwho made them. They maythen be construed as a form of
admission."); Keith Highet, "Evidence,the Court, and the Nicaragua Case," 8 1 AmericanJournal of
International Law p. 37 (1987) ("This method was applied to statements made by President Reagan and
by Secretary of State Shultz, for the UnitedStates; and by President Ortega, for Nicaragua. In addition,
the quotation (by the press) of 'UnitedStates administration sources' assisted in establishing the Court's
conclusions that the United Stateswas responsiblefor miningthe Nicaraguan harbors and, among other
similar facts, that the CIA was responsiblefor production of a psychological warfare manual").See aIso
VelhsquezRodriguez Case, Inter-AmericanCourt of HurnanRights(Judgment of 29 July 1988), para.
146,reprinted inT. Buergenthal, R.Norris & D. Shelton, Protecting HumanRights intheAmericas p.
257 (3rd ed. 1990)("Many of the pressclippings offered by the Commission cannot be considered as
documentaryevidence as such. However,many of them contain public and well-knownfacts which, as
such do not require proof; others are of evidentiary value, as has been recognized in international
jurisprudence ... insofar as they textuallyreproduce public statements,especially those of high-ranking
members of the Armed Forces, of the Government, or evenof the Supreme Court of Honduras . ..").
10Reply, para.2.43.Iranianshipping); Kuwait, Saudi Arabia, and theUnitedStates (for beingsympathetic with Iraq
duringthe war); andthe international cornmunityas a whole (for failing to condernn andstop
various Iraqi actions against Iran)".
1.O9 These assertionsraise issues that areoutsidethis Court'sjurisdiction and have no
relevancetothis case. Iran never declared that theUnitedStates was a belligerent in its war with
Iraq. Rather,this case is about Iran's illegal armed attackson neutral U.S.shipping and the
United Stateslawful actions in responseto those attacks. Iran's efforts to vindicateits accountof
the Iran-IraqWar are beyondthe scopeof these proceedings,andthis Court should ignore them.
1.10 Ultimately, this Court must setasideIran'svarious diversionarytactics and false
assertions and focus on the central facts on which this caseturns. Iran systematically attacked
U.S. and other neutral shipping andit used its oil platformsin these attacks. Iran bears sole
responsibilityfor these actions, andcannot complainaboutthe limited actionstaken by the
United States both in self-defenseand to protect essentialU.S. security interests.
" Iran observes in its Reply that Kuwaithas apologizedto Iran for its supportfor Iraq during the Iran-Iraq
War. See Reply, para. 2.26. U.S. Secretaryof State MadeleineAlbright said that "aspects of U.S. policy
towards Iraq, during its conflict with Iran appear now to have beenregrettably shortsighted, especially in
lightof our subsequent experienceswith Saddam Hussein." MadeleineK. Albright, Remarks before the
American-IranianCouncil, 17March 2000. While suchstatementsmay be of diplornatic or historical
interest,they shed no light on thespecific facts or legal issues raisedby this case. CHAPTER1
IRAN ATTACKEDU.S.AND OTHER NEUTRAL SHIPPING INTHE GULF AND
USED ITS OIL PLATFORMS INTHESEATTACKS
Section 1. IranSystematically and Deliberately Attacked U.S. and OtheN r eutra1Shipping
1.11 An analysis of this case must begin with the undisputedfactthat Iran systematically
and deliberately attacked U.S. and other neutral shippinginthe Gulfingthe Iran-Iraq War. In
its Counter-Mernorial,the United Statesdemonstrated that:
Iran attacked over200merchant ships from 31neutralcountriesbetween 1984and
198812.
At least 63 people werekilled in these attacks;at least 99 morewere injuredI3.
Iran attacked neutral shipping generally;;t did notlimit its attacksto ships carrying
\ war materiel nor to shipsrefusing to submitto visit-and-searchI4.
U.S. ships which Iran attacked included Bridgeton,Sungari, Sea Isle City,Lucy,Esso
Freeport, Diane, Esso Demetia, and USSSamuelB.RobertsI5.
TheInternational Association of Tanker Owners(hereinafter"Intertanko"),the
General Council of British Shipping, Lloyd'sWeeklyCasualtyReporting Service,
LloydS List,Jane S Defence Weeklya ,nd otherpublications reported extensivelyon
Iran's attackson neutral shipping andrned vesselsto take appropriate
'?SeeCounter-Memorialp ,ara. 1.04.
l3IbidS.tatementofCapt.ChristianFeyerPuntervold,15 January1997,andattachments,Exhibit 11.
l4SeeCounter-Memorial, para1..07.
l5SeeCounter-Memorialp ,aras.1.1-1.62,6.08;seealsoinfraP,arVI. precautionary measures to avoid Iran's attacks16
Shippingcompaniestook costly steps, including changing routes, sailing only at
night, and loadingtheir vessels at less than full capacity, to avoidtraveling near
Iranian offshore oil platforms because it was known that Iran used these platforms in
its attacks on neutral shippingI7.
Iran's attacks on neutral shipping drew widespread diplornatic protests and
condemnation from, among others, the UN Security Coun~il'~,the Arab League19,the
l6Counter-Memorial, paras. 1.01-1.OS.This Court has previously reliedon reports contained in
authoritativeaccounts by major maritime organizations. See, e.g.,Nicaragua, Merits,Judgment, I.C.J.
Reports 1986,para. 77 (relying onLloyd'sList and Shipping Gazette).
" See Statement ofColin Eglington, former General SuperintendentOperations Kuwait Oil Tanker
Company, Exhibit 3 1;Statementof Thomas R. Moore, President,Chevron ShippingCompany LLC
(hereinafter "Chevron Statement"), Exhibit 180.
''See Resolution 552,United Nations Security Council(2546thmeeting, 1June 1984),reprinted in
United Nations Document SlRESl552,(1984), Exhibit27, ("Havingconsidered the letter dated 21 May
1984from the representatives of Bahrain, Kuwait, Oman, Qatar, SaudiArabia andthe United Arab
Emirates complaining against Iranianattacks on commercialships en route to and fromthe ports of
Kuwait and SaudiArabia" the SecurityCouncil "condemn[ed]these recent attacks on commercial ships
en route to and from the ports of Kuwait and Saudi Arabia").
l9See Statementof Mr. Chedli Klibi, Secretary-General of the Leagueof Arab States,to the United
Nations SecurityCouncil, 25 May 1984, United Nations Document SlPV.2541, pp. 36-37, Exhibit 181
("Navigation in the international waters ofthe Arab Gulf hasin fact beenthwarted by acts of aggression
by the Iranian Air Force, which hasattacked tankers belongingto two Arab Stateson the Gulf, Members
of the United Nations,that is, Kuwaitand the Kingdomof SaudiArabia ...[Tlhose acts, for which Iran
is responsible, are acts of aggression against the sovereignty, securityand integrity of the territorial
waters of SaudiArabia and Kuwait inviolation of the noms of good-neighbourliness,the United Nations
Charter and theConvention on the Law of the Sea.";Arab League, Text ofCommunique from Amman
Summit, 11November 1987,27 International LegalMaterials, p. 1651,Exhibit 182("The leaders. ..
voiced their indignation at the Iranian regime7sintransigence,provocations and threats tothe Arab Gulf
States. . .The leaders reviewed developments inthe Gulfregionand the dangerous results of the Iranian
tlireats, provocationsand aggressions. . ..The Conferenceaffirmed its support of Kuwait in al1the
measures itadopted to protect itsterritories and watersand safeguard its stability. The Conference
expressed its support of Kuwait inconfronting the threats andaggressions of the Iranian regime.") Gulf Cooperation Co~ncil~~,the UnitedKingdom2', K~wait~~,Bahrain, Oman, Qatar,
20See Gulf Cooperation Council, Ministerial Statementon Iran's attacks on Tankers, 17May 1984,
reprinted inBritish Broadcasting Company, 19May 1984. Exhibit 183("The GCCMinisterial Council
held an extraordinary meeting today ... and reviewed recent developmentsinthe region, represented in
Iran's aggression against shippingto and fromthe ports ofthe GCC member countries ...They also
reviewed the threats those attacks posedto the vital interests ofthe GCC member-countries andthe
violation of international law and ofthe UNCharterthat they entailed, as well asthe infringement of the
law of the sea andthe resultant heighteningof tension inthe area. The Ministerial Council recalled the
decision taken bythe Supreme Councilto regard any aggression againstone member-country as
aggression agaii~stthem al1and, in linewith that attitude, the Council expressedits denunciation ofthose
attackstt).
" See Letter dated 22September 1987fromthe Permanent Representativeof the United Kingdom of
Great Britain and Northern Irelandto the UnitedNations Addressedto the Presidentof the Security
Council, United Nations Document S119147,Exhibit 184,"TheBritish Governmenthave clear evidence
that theGentleBreezewas fired onby one or more Iranian naval vessels at the position2750N and
4948E. . ..This attack was clearly premeditatedand totaily unprovoked,and hencewholly unjustified.
The Gentle Breeze posedno conceivable threatto the interests of the Islamic Republicof Iran. The attack
was in clear violation of principles of freedom of navigation, and of international law, inparticular
Security Council Resolution598(1987) of 20 July 1987. The British Governmentreserves the right to
claim compensation fromthe Iranian Governmentfor any damage or expenses caused by the attack on
the Gentle Breeze,or any other such attacks. My Governmenthave demanded animmediateexplanation
of this outrage and anapology for it, together with an assurance from the Governmentof the Islamic
Republic of Iran that such deliberate, unprovokedand wholly unjustified attackson unarmed British
merchant vessels will not be repeated."; "British Protest," TheTimes(London),27 January 1987,Exhibit
185("The ForeignOffice yesterday summonedthe Iranian charge d'affaires, MrAkhumzadeh Basti. ..to
deliver a 'vigorous protest' to Iran over an attack on Friday against a British merchant ship in the Gulf").
*'See Letter dated 1September 1987fromthe Permanent Representativeof Kuwaittothe United Nations
Addressed to the Secretary-General,UnitedNations Document S119093,Exhibit 186(reporting on
Iranian attacks on Kuwaiti shipping and stating, "Whiledeploring Iran's continuedacts of piracy by its
navy against Kuwaitivessels, Kuwait drawsthe attention to the threat that these Iranian practices pose not
only to the navigation inthe high-seas of the Arabian Gulf but alsoto the territorial waters of neutral
States.");Letter dated 15October 1987fromthe Permanent Representativeof Kuwaittothe United
Nations Addressed to the Secretary-General,United Nations Document Sl19210,Exhibit 187(reporting
on Iranian attacks on Kuwaiti shippingand stating "Furtherto Ourprevious correspondencewith you
concerning the attacks launchedby Iran against Kuwait,we would liketo inform youthat Iran has
persisted in its hostileacts against Kuwait in disregard of international lawsand resolutions");etter
dated 16October 1987from the Permanent Representativeof Kuwaitto the UnitedNations Addressedto
the Secretary-General, UnitedNations Document SI19215,Exhibit 188(reporting on Iranian attacks on
Kuwaiti shipping). Saudi Arabia, the United Arab Ernirate~~~E , g~pt~~,Jordan2', France26,the Soviet
23See Letter dated 21 May 1984from the Representativesof Bahrain, Kuwait,Oman, Qatar, Saudi
Arabia, and the United Arab Emirates Addressedto the President ofthe SecurityCouncil, United Nations
Document SI16574, Exhibit 189("Upon instructionsfrom OurGovernments, we havethe honour to
request an urgent meetingof the SecurityCouncilto considerthe Iranian aggressions on the freedom of
navigation to and from the ports of our countries.Suchaggressions constitute a threattothe stability and
securityof the area and have serious implicationsto international peace andsecurity"). See aIso "Saudis
Break Diplomatic Ties with Iran, Citing Mecca Riots andGulf Raids," TheNew YorkTimes,27 April
1988,p. A10, Exhibit 190(Saudi announcement ofbreak in relations with Iran "citedIranian threats
against navigation inthe gulf').
24See Letter dated 26 October 1987fromthe Permanent Representative ofEgyptto the United Nations
Addressedtothe Secretary-General, UnitedNations Document Al421687,SI19232,Exhibit 191("The
Arab Republic of Egypt condemns with utmostvigourthe act of aggression just committed againstthe
fraternal State of Kuwait" by Iran);Letter dated28 July 1988fromthe PermanentRepresentative of
Egyptto the United Nations Addressedto the Secretary-General,United Nations Document A/43/494,
Sf20072,Exhibit 192(reporting on Iranian attack on Egyptian shipping).
25See Statement of Mr. Salah, Representative ofJordan,to the UN SecurityCouncil, 25 May 1984,
UnitedNations Document SfPV.2542,pp. 3,4-5, 11,Exhibit 193,("Iran's raids on Saudi and Kuwaiti
tankers, as well as its attack on civilianiippingin internationalwaters, constitute a grave development in
the Gulf region. This gravity is reflected intwo aspects: first, the illegalityand illegitimacy of those
attacks; secondly, the political consequencesof their continuation.... [I]t is incumbentupon this Council
promptly to condemn these actions, which representa gravethreat to the sovereignty, independence and
welfare of the States ofthe region, as well as to regionaland international peace andsecurity").
26See "Iranian Gunboats Fire on French Ship," TheTimes (London),14July 1987,p. 7, Exhibit 194
("France has ordered itsCharge d'Affaires inTehranto demand an explanationfor the attack. The envoy
has beentold to warn Iran that France will 'exerciseal1its rights following this grave affair'").27See "Iran FacesProspect of Isolation byEast and West,"TheTimes(London), 12May 1987,Exhibit 195
(". ..the Soviet news agency has condemned as an act of piracythe gunboat attack on a Soviet freighter
traveling fromKuwait last week for which shipping agentsinthe Gulf blame Iran").
28See "20 ShipsHit in Gulf in SixDays, Raising Fears of Maritime Nations,"The New YorkTimes,4
September 1987, Exhibit 196("The Italian Foreign Ministry summonedthe Iranian Ambassador in Rome
and sent instructionsto its Ambassadorin Teheren [sic]to deliver 'the strongest protest'to the Iranian
authorities" over an Iranian attack onthe Italian containershipJolly Rubino).
29See "JapanProteststo Iran Over itsSuspectedAttacksonVessels,"Japan Economic Newswire,2October
1987, Exhibit 197("Japan lodgeda strong protest to Iran Fridayover what is believed tobe Iranian attacks
on two Japanese tankers in the Persian Gulf Wednesday. Takashi Onda, Director General of the Foreign
Ministry's Middle Eastern and African Affairs Bureau, said he made the protest to Ali Asghar Farshchi,
Charge d'Affaires at the Iranian Embassy in Tokyo at his Ministry").
30 See GovernmentofNonvay, cablereporting protestto Iranianauthorities, 10February 1988,Exhibit 198
(hereinafter "Nonvay Cable"); "Nonvay Tells Iran It Will Not Tolerate Gulf Ship Strikes,"Reuters, 24
December 1987, Exhibit23 ("Norway toldIran on Thursdayitwouldnottolerateattackson itstankers inthe
Persian Gulf,theNonvegiannews agencyreported. An officialprotestnotewashandedtothe Iraniancharge
d'affaires inOslo following two recentattacks on Nonvegian ships, the agency said").
31 See "GreeceLodgesForma1Protestwith Iran on ShippingAttacks,"Platt 'sOilgramNews,22 December
1987, p. 2, Exhibit 199("Greece delivered a sharp protestto Iran's Ambassadorto Athens over repeated
Iranian attackson Greek merchant ships in the Gulf (on 11/13)").
32 See "TurkeySticksto its GunsOverIranian Attack onAtlas 1Tanker,"Platt S OilgramNews, 19March
1986,p. 3, Exhibit200 ("The Iraniangovernment hasn'trepliedto Turkey's protest of an Iranian attack on
one of its tankers March 2, a Turkish Foreign Ministry spokesman said today (on 314).. ..Theday of the
attack, Turkey called the Iranian charge d'affaires to Ankaraand told him Turkey would 'reserve the right
to demand indemnity"').
33 See Statementof Mr. Farah Dirir, Representative ofDjibouti,to theUNSecurityCouncil,30 May 1984,
United Nations Document SlPV.2545,pp. 3, 5, Exhibit 201 (".. .my delegationurgesthe Security Council
to considerwithmore intentthe legitimacyand gravityofthecomplaintoftheGulf Stateswith regard to the
aggression ofthe Iranian war machineagainst oil tankers andother commercial vesselssailing to and from
theArab Gulfcountries that are not and have never been ina state of war with Iran").
34 See Statement of Mr. Mrani Zentar, Representative of Morocco, to theUN Security Council, 29 May
1984, UnitedNations Document SIPV.2543,pp. 9-10, 12-13,Exhibit 202 ("The Republicof Iran has thus
perpetrated undeclaredactsof waragainstcountrieswhicharepartiesto noconflictandwhichhave notbeen S~dan~~ ,nd Yemen36.
involved in any way in the hostilities between Iraqand Iran. Furthermore, the Iranian aggressive action,
which according to the Iranian authorities themselves can be expected to continue, is aimed at disrupting
navigation in international waters inthe Arab Gulf, paralyzingcommercial andother forms of traffic inthe
region and creating new difficulties for the world economy. This threatens not only many developed
countriesbutalso a great numberofthird-world countries, whichare besetbynumerouseconomic problems
and are sorely tested bythe high cost of energy. .. . Iran'sacts of aggression are wanton, unprovoked and
unjustifiable and are contrary to international law").
35See Statement of Mr. Birido, Representativeof Sudan,to the UN Security Council,25 May 1984,
United Nations Document SIPV.2542,pp. 17,18,21,Exhibit 193("The Iranian act of aggression against
the Kuwaiti and Saudi Arabian oil tankersclearly threatensthe sovereignty, independenceand territorial
integrity ofthe States of theregion. It isalso a flagrant threatto the freedom of navigation in
international waters and waterways leadingto and from the portsof al1the Gulf coastal States. .. .We
cal1upon Iranto desist from aggression, to respect the sovereigntyof the Statesof the region, their
territorial integrity,theiratenvays, ports and economic installations,to fulfill the obligations of good-
neighbourliness and to comply with the principles of theUnitedNations Charter and international law").
36See Statement of Mr. Sallam, Representative of the ArabRepublic of Yemen, to the UN Security
Council, 25 May 1984,UnitedNations Document SlPV.2541,pp. 24,26, Exhibit 181 ("...the delegation
of Yemen considersthat the acts of aggression committedby Iranian aircraft against Saudi and Kuwaiti
tankers in territorial waters and internationalnavigationchannels,far from areas that have been declared
as zones of hostility, should be denounced and theirpersistencecondemned, sincethey are aimed against
tankers belonging to two States that are not party to the conflict- something which heightenstension in
the region and constitutes a new threat to the peace, security and stabilityof those Statesand ofthe world
at large"). 1.12 In short, Iran's attackson neutral shipping were widespread, well documented, and
of great concernwithin the international shipping community. Consistentwith its past practice,
the Court rnaytakejudicial notice of the extensive publicrecordestablishing Iran's responsibility
for attacks on neutral ~hipping~~I .ranhas not attempted to denythese facts in its pleadings
before this Court. Its failure to do so should leadthis Court to concludethat Iran's responsibility
for attacks on neutral shipping hasbeenproven3*.
37See UnitedStatesDiplornaticandConsularStaffin Tehran, (UnitedStates oA f merica v. Iran,)
Judgment,I.C.J.Reports 1980,paras. 12-13(finding allegations of fact by the United States regarding the
seizure of the embassy and hostagesas well founded, giventhat they are matters of public knowledge
which have received extensive coverage inthe world press); Keith Highet, "Evidence,the Court, and the
Nicaragua Case," 8 1American Journal of InternationalLaw p. 39 (1987)(With reference tothe
paragraphs cited immediately above: "Thiscomment is useful in analyzingthe role played byjudicial
notice and the observation of 'currentevents' by thejudges. In the positionof the International Court,this
is a necessary, if not an inevitable, step inaccumulatingthe factual evidenceupon which determinations
as to internationalresponsibilitycan proceedto be founded");Nicaragua, Merits, JudgmentI,.C.J.
Reports 1986,para. 63 ("although it is perfectly properthat press informationshould not be treated in
itself as evidenceforjudicial purposes, publicknowledge of a fact rnaynevertheless be established by
means of these sources of information,andthe Court can attach a certainamount of weight to such public
knowledge"); Mojtaba Kazazi, BurdenofProofandRelatedIssues,p. 174(1996) ("the conceptof
judicial notice itself isundoubtedly admittedin international procedureand is applied by different
tribunals includingthe International Court of Justice").
38See Keith Highet, "Evidence, the Court, andthe Nicaragua Case," 81AmericanJournal of International
Lawpp. 33-34 (1987) ("Traditionally, the Court has operated in importantareas of factual conclusions by
an informed processof inference. The inferentialmethod rnay be 'negative,'inthat it seeksto conclude
about a state of affairs because of a failureto deny or rebut it. Thus,what is not denied rnaywell be
accepted: for example overflights by U.S.military aircraft in the Nicaraguacase .. ..The inferential
process rnayalso be 'affirmative'; it rnayengagethe responsibility of a state on the presumption that the
state must have intendedthe likelyor reasonably foreseeable consequencesofah earlier statement or
action"); MojtabaKazazi, BurdenofProofandRelated Issues, p. 371(1996)("The rule of actori
incumbitprobatiois affected bythe operationof presumptions inthe sensethat, inthe process of
evaluating evidence,the tribunal takes accountof any presumptions applicablein favour of the party that
carries the burdenof proof and not refuted by the other party. Generallyspeaking, presumptionsaffect
the burden of proof insofar as they createprima facie evidence or proof in favourof the party that 1.13 Indeed, during the war, Iran acknowledgedthat it maintained an illegalcampaign of
attacks against neutral shipping. For example, in February 1988,Nonvay's Ambassador to Iran
protested Iranianattacks on Nonvegian shippingtoHosseinSheikholeslam, Iran's Deputy
Foreign Minister. The Norwegian Ambassadornotedthat the Norwegian shipshadbeen
engaged "inlegal traffic between neutral harbors" at the time Iran attackedthem39
1.14 In response to this protest, Deputy ForeignMinister Sheikholeslamacknowledged
both Iran's responsibility forthe attacks in questionandthat Iran maintained an illegalpolicy of
attacking neutralshipping in the Gulf. According to the Nonvegian Ambassador'sreporting
cable on his conversation with Deputy Foreign Minister Sheikholeslam:
"Sheikholeslam did notdeny that Iran indeedwasresponsible for the attackson Happy
Kari,Berge Big, IglooEspoo,and PetrobulkRuler. He said he regrettedthat Nonvegian
ships had been targeted in such attacks, andaddedthat Iran's purposewas not to hm
Norwegian shipping. Itwas the cargothese shipswere carrying that wasthe real target.
Sheikholeslam stressedthat Iran was determinedtocontinue attacking - whenever
possible- al1ships canying cargo to or from docksin Saudi Arabia or Kuwait. When 1
arguedthat these are flagrant violations of internationallaw, he somewhatarrogantly
respondedthat he was fully aware of that. Sheikholeslammentioned thatthe Iranian
Navy had been instructedto seek to avoid lossofhuman lives duringthe attack40."
1.15 Iran's practice of attacking neutralshipping,and Iran's specifictargetingof U.S.
shipping, wasfurther confirmedin April 1988by CommodoreMohammad Hoseyn
benefitsfrornthem.Thisresults inthe shiftingoftheburdenofevidencefrornonepartytotheother").
39NorwayCable,Exhibit 198.
40Ibid.Malekzadegan, Commander ofthe IranianNavy, who acknowledgedthe existenceof "a
wholehearted task by the Navy overthe past year, comprisingindirectblows inparticular to the
US.fleet, affecting both its warshipsand its merchant vessels, withmines or missiles4'. ..."
1.16 Againstthis background,there can be no doubt of Iran's responsibilityfor attacks
on U.S. and other neutral shipping.
Section 2. Iran Used itsOilPlatforms inits Attacks on U.S.andOtherNeutra1Shipping
1.17 The evidenceis also clear that Iran used its oil platformsin its attacks on U.S. and
other neutral shipping. Indeed,the plans and communications of Iran's Navy,as well as
numerous eyewitness reports,make it impossiblefor Iran crediblytodenyits military useofthe
platforrns. Iran's only responseto this evidence isto suggestto the Courtthat there were limits
to the military role thatthe oil platforms played. Iran's responsein no way refutes the substantial
body of direct evidence demonstrating Iran's useof the platforms in its attacks on U.S. and other
neutral shipping.
41"Radio Phone-InProgram WithDefense Officials," Foreign BroadcastInformationService, 14April
1988, p. 53, Exhibit 13(emphasis added). This Court should viewsuchstatementsby senior Iranian
Government officiaisas particularly probative since they constitute admissionsagainst Iran's interest.
See supra, note9. A. THEIRANIAE NXCLUSIO ZNONE ANDTHECHANNE LORNEUTRAS LHIPPING
1.18 As a matter of context,it is importantto understandthat, during the Iran-Iraq War,
neutral shippingwas required to travel alonga route that passed close to the Rostarn, Sassan, and
Sirri platform complexes. This necessity arose from Iran's declarationof an exclusion zone
along its coast in the Gulf which renderedoff limits the routesto the north of the platforms that
commercial shippinghad followedprior tothe war. Routesto the extreme south of the platforms
were not viable because shallowerwaterthere created risksthat fully loadedtankers wrund
agr~und~~.As a result of Iran's exclusionzone, the routeU.S.tankers took through the Gulf
carried them fewerthan 15nautical milesfrom the Sirriand Rostam platforms, and fewer than
30 nautical miles from Sa~san~~. he evidence is clearthat Iranseizedon this circumstanceto
incorporatethe platforms into its militarycommand structureand to use the platforms in its
attacks on U.S. and other neutral shippingin the Gulf.
1.19 Documents issuedby the IranianNavy establishconclusivelythat Iranused its oil
platforms aspart of its military apparatus,by means ofwhich it attacked neutral shipping. This
42See Statement of Colin Eglington, 10,Exhibit 1.
43SeeCounter-Memorial Map 1.2.evidence includesa document entitled "Joint SeaCoast 1Combat Group(Operations)Sea Coast
1OperationsPlan Ghadir"(hereinafter"Operations Plan")44.U.S. forcestook possession of the
OperationsPlan when they boardedthe Iran Ajrafterwitnessing its crew layingmines in the
Gulf. The United States immediatelytreatedthe documentas highly classifiedand has not
previously disclosed its possessionof the document. In light of Iran'sposition in its Reply, the
United Stateshas taken the extraordinarystep of declassifyingthis documentto permit its use in
this case.
1.20 The Operations Plan is marked "TOPSECRET" in Farsiand indicatesthat it is copy
32 of 50 copies of the document inexistence. A register in the frontof the OperationsPlan
indicatesthat the document wasupdated regularly,and that it had beenupdated on 24 June 1987,
just over three months priorto the seizureofthe IranAjr. The OperationsPlan describesthe
organizationand responsibilitiesof the Iranianforcesthat make up the Sea-Coast 1Combat
Group, contains information gatheredby Iranian intelligence aboutthe posture and intentions of
the forces of other countries presentin the Gulf, and contains operationalplans that the Sea-
Coast 1Combat Group shouldhave been preparedto cany out if orderedto do so.
1.21 The OperationsPlan andother IranianNavy documents and communications which
the United States submitted with its Counter-Mernorialdemonstrate conclusivelythat the
Rostam, Sassan, and Sirri platform complexeswere an integral part of Iran's military operations
44IslamicRepublicof IranNavalForces,JointSea-Coast1CombatGroup(Operations)Sea-Coast1
Operations Plan GhadirE ,xhibit203.structure, andthat Iranused the platforms in its conductof military operations, which included
Iran's attacks on neutral shipping in the Gulf. Specifically:
Iran deployed military observationsposts "onthe oil platforms in thesouthernparts of
the Persian Gulf' - including onRostarn,Sassan, and Sirri - "inorderto gather
information aboutthe enemy'sair andseatraffic and destroy its craft4'."These posts
included military observerswhose "goal" was "[tlhe immediateexchangeof intelligence
from the oil platformsto Sirriand Lavanusing the radios ofobserverson the platforms
and then, the immediate andsecuretransmission of these messages fromthe Islands to
Fleet Headquarters andthe 1"Naval District (Bandar Abbas) 46.''
The Reshadat (Rostam)andNasr (Sirri)platforms are listed in the OperationsPlan's
Combat Organization Annex as " 1"Naval District Naval Facilities". This listing also
specifically refers to Rostamas a "radar site" andto Sirri as a "temporaryradarsite47"
The OperationsPlan's IntelligenceAnnex statesthat "Oilplatforms subordinateto the
Sea-Coast 1Combat Group areto report the following informationas soon as it is
received: any movement of foreignvessels nearthe oil platforms4'...." The platforms'
broad order to report on "anymovementof foreign vesselsnearthe platforms" contrasts
with other orders elsewhereinthe OperationsPlan that relateonlyto "movementsor
activities of enemy ve~sels~~" .learlythe mandateof the platforms extended to reporting
on the movements of neutral commercial shipping.
The Operations Plan states that the1"Naval District InstallationsCornrnand,which
includesthe Rostam and Sirriplatforms,is charged with the tasks of"conduct[ing]visual
45Islamic Republic of Iran ArmedForces, Fleet, 1"Naval District ((Intelligence)),Instructions for the
Deployment of Observers inthe Persian Gulf, p. 3, Exhibit 115.
46Annex G (Cominunications), p. 9, Exhibit 115.
47Islamic Republic of Iran Naval Forces, Joint Sea-Coast 1Combat Group (Operations) Sea-Coast 1
Operations Plan Ghadir, p.20, Exhibit 203.
48Ibid.,pp. 23-24.
49Compare Instructionsto Oii Platforms, ibid.,with "Requests from Adjacent Units,"ibid.,pp.24-25. andradar surface and airsurveillancefor the 1" Naval District" and "be[ing]preparedto
conductjoint operationswith the ships and the marine brigade5'."
Outgoingmessages foundon the Rostam platformreport onthe composition,location,
movements, and speed ofshippingconvoys traveling inthe Gulf. These includea
message reporting onthe movementsof a U.S.escorted convoy of ships that included Sea
IsleCi@'. These messagesconfirmthat, consistentwith Iran's militaryplans, Iran in
fact used the oil platformsto monitor shippingtraveling in the Gulf andto communicate
that information to otherelementsof the Iranianmilitary.
Messages from the Rostamplatform found aboardIran Ajrconfirmthat Iranused its oil
platforms to transmit informationdirectlyto shipsof the IranianNavy, includingthose
engaged in minelaying5'.
1.22 As noted above,the locationof Iran's exclusion zone inthe Gulf requiredneutral
shipping to travel a course close tothe Rostam, Sassan,and Sirri platform complexes. These
platforms were thus ideally placedto carry out their ordersto report onthe locations and
movements of foreign shipping. Theplatforms playedthe additional role of communicatingthis
informationto Sirri and LavanIslands for further disseminationto other elements ofthe Iranian
Navy, as well as directly to Iraniannaval vessels conductingoperationsin the Gulf. Reportsas
to the location,course, and speedof shipsincludingSea Isle C~S,allowed Iranto target these
50Ibid.,p. 14.
5'See SelectedMessages fromArchiveof Incoming Messages,RostamOil Platform,Exhibit 119;infra,
paras.1.43-1.45
52See Translationsof the SelectedPaper-TapeMessagesSentFrom,andReceivedbythe IranAjr, Tapes
1, 16,and 21,Exhibit71.ships with missiles and mines aspart of its illegal campaignof attackingneutralshipping inthe
Gulf.
C. THEINTERNATION SHLIPPINGCOMMUNIT WYASAWARE OFIRAN'S USEOFITSOIL
PLATFORM ISITSATTACKO SNU.S.ANDOTHER NEUTRAS LHIPPING
1.23 As the United Statesdemonstrated inits Counter-Memorial,the international
shipping community waswell awarethat Iran was usingits oil platforms initsattacks on U.S.
and other neutral shipping. Specifically,the United States demonstratedthat:
During the Iran-IraqWar,Iranian forcesattacked 45-50 ships within50 nautical milesof
the Rostam platform; 35-40shipswithin 50 nautical miles of the Sassanplatform;and
35-40 ships within 50nautical miles oftherri platforms3.
Members of the crewsof neutral commercial vessels attackedby Iran witnessed Iran
using its oil platformsto launchits armed attackss4.These eyewitnessreports included:
An eyewitness accountby a crew memberof the Nonvegian shipBerge King that
"he saw two helicopterson theranianoff-shore installation,Rostam Island. One
of them liftedand attacked, butthe missile fell harmlessly intotheThe other
helicopter lifted whenthe first one returnedtothe installationand a misile
[sic] which landedinthe air conditioning room withoutexpl~ding~~."
53SeeCounter-Memorial, para1.91and Rejoinder Map 1. Some of the ships attacked were within the
range of more than oneof the platforms.
54This Court has previously found highlyprobative evidence that came from disinteresteSeeitnesses.
Nicaragua, Merits,udgment,I.C.JReports1986,para. 69 ("In the general practiceof courts, two forms
of testimony which are regarded as prima facie of superior credibility are, first the evidence of a
disinterested witness - one who is nota party to the proceedings and stands to gain or lose nothing from
its outcome-and secondly so muchof the evidence of a party as is against itsown interest").
55See"Tanker Safety Circular Letter No.Intertanko16April 1986,para. 3, Exhibit 17. An eyewitness accountby the Captainof the Panamanian ship Steliosthat he saw
the helicopter that launcheda missile attack onteliostake off fromRostam
Islands6.
a An eyewitness accountby a crewmemberof the French ship Chaumont that he
observed "du décollagede deuxhélicoptèren son identifiésdes deuxplate formes
du champ pétrolifèreROSTAN, a alors aperçu un des hélicoptères ouvrir le feu
d'une distanceévaluée à 1'5 et d'unealtitude de60 métres. Aussitôt à 17.58par
25.47N et 52.43Ele navire a été touché par un missileà tribord arrièrà la
hauteur du pont 2 sousune incidencede 20" environde l'axe dunavire. Sous
l'impact extinctionde la chaudièreTribord, émission de fuméenoire épaisse.
Retour des hélicoptères a leurbases7."
In additionto these specificeyewitnessaccounts, numerous independent shipping
sources,on the basis of datacompiled from a nurnber of sources, reported that Iran was
using its oil platforms tounchattacks on neutral shipping. These reports include:
a
A report by Intertankostating that "[alt least 14shipsare reported to havebeen
attacked from this installationcalled Rostam Island, located about 100m from
the Iranian shoreline5'."This same information wasalso reported by Jane S
Defence WeeklY9.
A report by the GeneralCouncil of British Shippingstatingthat "[rleportsindicate
that the Iranians arenow also usinghelicopters operatedfrom their oil platforms
in the Rostram [sic]Field (25.50N 52.53E), Sassan Field (25.30N 53.08E)and
See ibid.
57See ProtestofCapt.M.Faury,5March1986,Exhibit 110 (theeyewitness observed "thetake-offof
twounidentifiedhelicoptersfrom tworigs inRostamoilfield. Hethensaw one ofthehelicoptersopen
fireatanestimateddistanceof 1'5andanaltitudeof50 meters. Thereupon,at 1758hours, at25'47'N
and52'43'E,tlievesse1washitbyamissileontherearstarboardside,levelwithdeck2,atanangleof
approximately20' inrelationtothevessel'saxis").
58"TankerSafetyCircularLetterNo.54," Intertanko,16April 1986p ,ara.3,Exhibit17.
59See "IranMountsAirStrikesfrom OilPlatform," Jane's DefenceWeekln 26April 1986,Exhibit109.As
noted supra,note54,thisCourthas viewedasprobativereportsbymajormaritime organizations. i
L I l
1 i
1 I
'.
SECTION OF BRITISH ADMIRALTY CHART #2858 ..m
:'---.J?
GULFOF OMAN TO SHATT AL 'ARAB
CHART DEPICTS:
1. IRANIAN EXCLUSIONZONE
2. IRANIAN OIL PLATFORMSWlTH 50 NAUTICALMILE RANGE ARCS
3. IRANIAN ATTACKSON MERCHANTSHlPPlNG
HELICOPTERATTACKS
REVOLUTIONARYGUARDSMALL BOAT ATTACKS
IRANIAN AIR FORCE ATTACKS
IRANIAN NAVY ATTACKS more recently fromAbu Musa Island(25O53N55'02E)" in connection with
attacks on commercial shipping60.
A report by International Defense Review stating that "toextendtheir range and
time on station,Iranianhelicopterpilots make use of forward operating bases.
These have beenknownto includethe disused Rostamoil production platform in
the central GulP1... ."
A report by Lloyd SList stating that "Iranianattacksthis year havecome fiom
helicopters oftenactingalone and basedon rigs near the Sirri and Fateh oil
terrninals6'Ii
An additionalreportby Lloyd's List statingthat "[olther recent Iranianraids have
been launchedfrom a helicopterpad on a disused oil rigat Rostam Island,
midway betweenIran and Qatar -andpossibly a similar structureonthe nearby
Sassan oil field63."
Reports by theNonvegian Shipowners'Association to shipping companies and
merchant shippingorganizations indicatingthat"Iranianforces wereusing the
Rostam, Sirriand Sassanplatforms formilitary purposes - specifically,to launch
small boat andhelicopter attacks on neutral shippingduring the period 1985-
198864."
Shipping companiestook costly steps to avoidtraveling nearthe platforms because they
were aware of and concemedabout Iran'suseof the platforms to attack neutral
60"IranIIraqT:he SituationintheGulf, GuidanceNotesforShipping,"General Councilof British
Shipping, 30 May 1986, p. 14,Exhibit104.
6'"GulfWarIntensifies,"International DefenseReview, March1987,Exhibit14.
62"HOW GulfShippingTollis Mounting," Lloyd's List, 7August 1986,Exhibit108.
63"IranSetsUpNew TankerAttackBase,"Lloyd's List, 14May 1986,Exhibit108.
64Statementof Capt.Christian Feyer Puntervold,15January1997,Exhibit11. ~hipping~~.
1.24 In sum, it was well-establishedwithinthe international shippingcommunitythat
Iran useditoil platforms in its attacksonU.S. andother neutralshipping. Iran's actions were
observed by numerous eyewitnessesandwidely reportedby shipping industry sources. Shipping
companies, at greatpense, took necessaryprecautionary measuresin response. Documents
from theIranianNavy confirm the militaryroleofthe platforms. This vast body of evidence
makes it impossible for Iran crediblytodenyits use of the platforms in its attacks on U.S. and
other neutral shipping.
D. IRAN'S ASSERTION ASBOUT THECHARACTE RFTHEPLATFORM DSONOTREFUTE THE
EVIDENCE OFTHEIR USEINITSATTACKO SNU.S.ANDOTHER NEUTRAS LHIPPING
1.25 Faced with the vast body of evidence establishingits use of the oil platforms for
attacks on U.S. and other neutral shipping,Iranoffers little direct response. Indeed, Iran has
specifically acknowledgedeveralofthe facts establishing the military role ofthe platforms:
Iran acknowledges that it stationed 12soldiersand a petty officeronthe Rostam
platform, about 12oldierson the Sassanplatform,and up to 15naval personnel on
65SeeStatement of Colin Eglington, para. 10,E1("Becauseof our concernsabout Iran's
platforms, we charted new routes that would take our vessels much further south where they would be
least expectednto as shallow water aswe could giventhe ships' 'draft'behveen 18and 22 metres. We
wanted to keephe vessels as far away from Iran and itsoil platformsas possible. Navigation of these
routes would have been difficult and dangerousin any case, but wasmade more so by the lack of surveys
of the area we were to navigate. Obviously, thechange in routes and additional waitingtime increased
KOTC's costs again tremendouslseealsoChevron Statement, Exhibit 180. the Sirriplatfoxd6.
Iranfurther acknowledgesthatthese military personnelused communications
equipmenton the platfoms to communicate withnavalbases at Lavan and Sirri
Islands6'.
In the specific case of the Rostam platform, Iran acknowledgesthat documents found
aboardthe Iranianmilitaryvesse1Iran Ajrdemonstratethat Rostam wasused to relay
messages to theIran Ajr,andthat documents found on Rostamshow that Rostam
"waspart of a communicationsnetworkof stations6*".
Notably, though Iranhas attemptedto cast doubton the evidence against it,ithas not
categorically deniedthat itaunchedattacks on neutral shippingfromthe platforms.
1.26 BecauseIran cannot refütethe evidence establishingthat itused the oilplatforms to
attack neutral shipping,it has limited itself tomaking a seriesof assertions that failto respond to
the case against it. Iran asserts that there were limitsto the militaryrole thatthe platforms were
capable of playing, but none of these asserted limits is inconsistentwith the military role that,as
the evidence demonstrates,the platfoms actually played. Iran also asserts that ithad ways of
attacking neutral shipping without using the platforms, but the existenceofh alternative
means again is in no way inconsistent withthe military role thatthe platforms actually played.
Put simply, none of Iran's assertions refutesthe evidence, that Iran in fact usedits oil platforms
to attack neutral shipping.
66See Reply, paras. 3.43.63.
67See ibid .,ra. 3.41.
See ibid .aras. 3.47-3.48, 3.63. 1. The Platforms DidNot RequireTechnolo~icallyAdvanced Equipmentto Perform
TheirMilitarv Role
1.27 Iran's Replydevotesmuchspaceto explainingthat Rostam, Sassan,and Sirri were
not equippedwith advanced radar andcommunicationsequipment. Iran's suggestion appearsto
be that suchadvanced equipmentwasnecessary fortheplatforms to perform military functions.
This suggestionis wrong. The personnel and equipmentwhichIran acknowledgeswere
stationed onthe platforms were sufficientfor Iranto usethe platforms in connection withits
military operations. Andthe evidenceoutlined aboveestablishes that Iran,in fact, did usethe
platforms formilitary purposes.
(a) Radar
1.28 Iran acknowledges thatthe Rostarnplatformwas equipped with a Decca navigation
surface radarwith a range ofup to 48 nautical rniles'j9.While Iran observes that the radaris of
the sametype used by yachtsandcommercial vessels,Iranhas not responded to evidence
indicating that itused this radar to supportits military operations.
1.29 The United Stateshas demonstratedthatIranattacked between45and 50ships
within 50nautical miles of the Rostamplatf~rm'~.Eachof these attacks occurredwithinthe
--
69See ibidp.ara. 3.35.
70See Counter-Mernorial, para. 11and Map 1.range of the Decca radar aboard Rostam acknowledgedby Iran. Iran'suseof the radar in
connection with military activities is further indicatedby documents fromIran's own military,
which indicate that the Rostam platformwas a "radarsite" and that the Sirriplatform was a
"temporaryradar site7'". Moreover, accordingto the Iranianmilitary's Instructionsforthe
Deployment of Observers in the Persian Gulf, Iran'spurpose for placing militaryobservers on
Rostam, Sassan,and Sirriplatforms was "... to gather information abouttheenemy's airand
sea traffic and destroy itscraft"and to providefor "the immediateexchangeof intelligence from
the oil platforms to Sirri and Lavanusing the radiosof observers on the p1atfoi-m~'~".Iran's
assertion that the radar aboardRostarnwas not sophisticated does not rebutthe evidence
indicating that Iran usedthe radar for militarypurposes; nordoes it respondto the evidence that
Iran's militaryused the Sirriplatformas a temporary radar site.
(b) Communications equipment
1.30 Iran also acknowledgesthat each ofthe platforms wasequippedwith
communications eq~ipment~~.Iran's observationthat commercial oil platforms would ordinarily
" Islamic Republic of Iran Naval Forces, JointSea-Coast 1 Combat Group (Operations) Sea-Coast 1
Operations Plan Ghadir, p. 20, Exhibit 203.
72Islamic Republic of Iran Armed Forces, Fleet, 1"Naval District ((Intelligence)),Instructionsforthe
Deployment of Observers inthe Persian Gulf, p. 9, Exhibit 115.
73Reply, para 3.41(indicating thatNasr (Sirri) was equipped with a VHF radio anda multi-channel sailor
radio; that Reshadat (Rostam) was equippedwith a telephone linkand a short-rangesailor radar; andthat
Salman (Sassan) was equippedwith a telephone link and a radio room).be expected to be equipped with communicationsequipmentagain fails to addressthe evidence
that Iran usedthis communications equipment for military purposes.
1.31 Iran's Reply acknowledgesthat military observersonthe platforms usedthe
platforms' equipmentto cornmunicatewith Iraniannaval baseson Sirri and LavanIslands74.The
evidence also shows that the platformstransmitted messages directlyto the Iranianmine-laying
ship Iran Ajr75. And Iran's own documentsclearly statethat Iran's goal in placing military
observers onthe platforms was "theimmediate exchangeof intelligence from the oil platforms to
Sirri and Lavanusing the radiosofobservers on the platforms andthen, the immediate and
secure transmission of these messagesfrom the Islandsto Fleet Headquartersandthe 1" Naval
District (BandarAbbas) 76."Again,Iran has offeredno substantiveresponse to this evidence.
(c) Helicopterlandingpads
1.32 Iran acknowledges thateach ofthe platforms contained a pad from which
helicopters couldtake off and land77.Iran observes, however,thathelicopter pads "were
74See ibid. ("ThemilitarypersonnelusedNIOC'sradiostocommunicatewithLavanandSirriIslandbases").
75SeeTranslationsof the Selected Paper-TapeMessages SentFrom, andReceived bytheIran Ajr, Tapes 1,
16,and 21, Exhibit 71.
76Islamic Republic of Iran Armed Forces,Fleet, 1"Naval District((Intelligence)), Instructionsfor the
Deployment of Observers in the PersianGulf, Annex G (Communications), p. 9, Exhibit 115.
77See Reply, para.3.42 ("In orderto allow forthe transport of NIOC personnel, spare parts and
provisions to and from the platforms, eachcomplex had a helicopter padfor NIOC's Bell and Alouette
helicopters").perfectly ordinary facilities thatcould befound on virtually any offshore oilp1atfo1-m~~".
1.33 Iran's assertionsas tothe "ordinary"characterof the helicopterpadsdoes not refute
the evidencethat Iran used the helicopter pads for military purposes. Asthe United States
demonstrated in paragraph 1.23above,eyewitnesses observedIranianmilitaryhelicopters lifting
off from the oil platforms andproceedingto launchattacks on neutralshipping. Iran's only
response to the evidence that it usedthe Rostam platform to launch an attack on theFrench ship
Chaumont comes from a personwhowas not presentat the time of the attackandwho has
offeredthe Court nothing more than conjectureand speculationto supporthis vie^^^. Iran has
offered no substantive responseat al1to the eyewitness testimony of itsuse of Rostam to launch
attacks on Berge King and Steliospo.
2. The Military EquivmentIran Placedon the Platforms Couldbe Used Offensivelv as
Wellas Defensively
1.34 Iran also seekstobluntthe force ofthe evidence demonstratingthe military role
played by the platforms by assertingthatthe platforms'role in Iran's military communications
structure was solely defensivein nature. Accordingto Iran, the presenceof military personnel
''Ibid.
79See Statementof MohsenSalehin,, Reply,Vol. VI, para.7 (basingassertions aboutthe Chaumont
attackon reviewof theProtestof Capt.M.Faury,butnoton anyfirsthandknowledgeof the incident).
See supra,para.1.23.and equipmentonthe platforms "wascomrnensurateonly with the need to defendthe platforms,
and was not designed for offensive use8'." Butmilitaryobservers, radar, and communications
equipment are not inherently defensivein nature. Any system capable of gatheringand
transmitting information for use in defensivemilitaryoperationscan as easily be used to
facilitate offensivemilitary operations. As the evidencedemonstrates, Iran used the equipment
stationed onthe platforms to gather informationaboutthe location of neutral shipping,to
transmit this information to other elernentsof the IranianNavy, and to launch helicopterswhich
carried out attackson neutral shipping.
81
Reply, para.3.33. CHAPTERII
IRANOPPOSEDTHEINTERNATIONALCOMMUNITY'S EFFORTS TO PROTECT
NEUTRALSHIPPINGFROMIRANIANATTACKS
Section 1. The InternationalResponseto Iran's Attackson Neutra1Shipping
1.35 As discussed above,Iran's illegal attacks on neutral shippingwerewell-established,
and of great concern, throughoutthe international shippingcommunity. In additionto making
numerous diplornaticprotests as detailedabove,the international communityfurther
demonstrated its opposition to Iran's attacksby mobilizingefforts to protect neutralshipping
traveling through the Gulf. Iranrespondedto these effortswith a new setof illegalattacks
specifically targeted against the internationalcommunity'sefforts to protect neutral shipping in
the Gulf.
A. REFLAGGING
1.36As discussed inthe Counter-MemorialandPart VI below, in response to a request
by the Government of Kuwait,the UnitedStates andthe United Kingdom reflagged a number of
Kuwaiti vessels in an effortto deterfurtherIranian attacksagainst them. Four ships ofthe
Kuwait Oil Tanker Company (hereinafter"KOTC")wereflagged under United Kingdom registry
and elevenKOTC ships wereflaggedunder U.S. registry. To similar effect, the Soviet Union
provided four Soviet ships on a charterbasisto KOTC. B. NAVAL ESCORTA SNDMINESWEEPERS
1.37 In order to ensure that neutral vesselswouldbe able to transitthe Gulf safely,
France, the UnitedKingdom, Italy, Belgium,the Netherlands and the Soviet Union sent combat
ships andlor minesweepers to the Gulf. TheUnitedStates also sentmilitary shipsto protect
neutral shippingaspart of Operation EarnestWill. The total force senttothe Gulf by the
international community numbered over70vesselsS2.
1.38 These efforts of the internationalcomrnunityto protect neutral shippinginthe Gulf
demonstrated its united opposition to Iran's illegal attacks and its determination tomaintain
freedom of navigationin international watersandensurethe unimpededflow of oil through the
Gulf.
Section2. Iran's Oppositionto Effortsto ProtectNeutra1Shipping
1.39 Iran began attackingthe internationalcommunity'sreflagging andescort operations
immediately upontheir establishment. Asthe United States demonstratedin its Counter-
Mernorial:
Iranattacked with a mine the Soviet oil tankerMarshal Chuykovon its first mission
as a charteresse1for the Kuwait Oil Tanker Companyon 16May 198783.According
toJane 'sDefence Weekly,shippingofficiaisat the time concluded thatthe attack was
'"ee Anthony H.Cordesmanand Abraham R.Wagner, TheLessonsof ModernWarfare,VolumeII:The
Iran-IraqWar, p.317(1990), Exhibit204.
83See Counter-Memorial, para ..19. part of an intensifiedIranianmining campaign "aimedat disnipting plans forthe US
and Soviet navies to start escortingconvoysof vessels to protect them from Iranian
surface and air attackg4."
Iran attacked with aminethe U.S. flaggedvesse1Bridgeton, which was part of the
first convoy of U.S.Navyescorted merchantvessels on 24 July 1987.
1.40 Iranian officials publiclyannouncedtheir plansto target the international effortsto
protect neutral shipping in the Gulf. Shortly afier the attackon Marshal Chuykov,Iran's
Ambassador to the United Nations, SaidRajaie-Khorassani,stated: "ifmy country has the
intention of attacking a Kuwaiti tanker, it will continuewith that policy, regardlessof whose flag
it is carryingg5."Similarly, on the day ofthe attack on the Bridgeton, Ali Akbar Hashami
Rafsanjani, Speaker of Iran's Majlis,praisedthe attack, saying:
"Well,in tmth these are God'sangelsthat descendand do what is necessaryat the
appropriatetime. . . Wehave saidthat Ourplan is clear. We have stated: ifour ships
are hit, the ships of Iraq's partners willbe hit. Ofcourse, we will not claim responsibility
for anything, for it is an invisibleshotthat isbeingfired.
.. .[Tlhey will provide escortfor four ships,whataboutthe rest? Each dayseveral ships
berth in Kuwait and then set sail;these are cargoships carrying goods, oil and other
commodities. Therefore, severalvessels visit Kuwait every day. How extensive a
retaliation do we need? Twoper week, eightper month, five?. .. Consequently, nothing
can stop us from retaliating. Then why is the United States botheringto undertake such
an expensive operationg6?"
84"Iraniansin MinelayingCampaign AgainsK t uwait,Jane's DefenceWeekly2 , 7June1987,p. 1344,
Exhibit35.
85"WeinbergerWarns AgainstAttacks in Gulf;IranThreatens,"UnitedPressInternational,25May
1987, Exhibit4 1.
86"Hashemi-RafsanjanP ioliticalSermon,"Foreign Broadcast InformationService,24July 1987,Exhibit
50. Asnotedbefore,thisCourtshould view suchstatementsbyseniorIranianofficialsas particularly 1.41 Iran's policy was thus clear. Iran wouldattack "wheneverp~ssible*~"vessels
involved intransporting Kuwaiti or Saudi oil through the Gulf, regardlessof their nationality or
their status as neutrals. Iran would also attack vesselsinvolved in effortsto protect the right of
neutral shipping to travel through the Gulf.ursuantto this policy, Iranfollowed its attackson
Marshal Chuykovand Bridgetonwith additionalattacks on U.S. shippinginthe Gulf. Among
other attacks on U.S. shipping,these attacks included Iran's 16October 1987missile attack on
the U.S. flaggedoil tanker Sea IslCit ynd Iran's 14April 1988mine attackon the U.S. warship
USSSamuelB. Roberts, which was returning to Bahrainafter escortinga convoy of U.S. flagged
merchant vessels.
probative sincethey constitute admissions againstIran's interest. Seesupra,note 9.
87Norway Cable, Exhibit 198. CHAPTER III
IRANIS RESPONSIBLE FORTHEATTACKONSEA ISLE CITY
Section1. The EvidenceDemonstratesIran'sResponsibilityfor the AttackonSea Isle City
1.42 The United States demonstratedin its Counter-Memorial that Iranis responsiblefor
the 16October 1987attack on the U.S. flagged oil tankerSea IsleCity. Specifically,theU.S.
Counter-Memorialshowed that:
Eyewitnesses observed themissilethat hitSea Isle Citycoming from Iranian-controlled
territory in the Faw area. The missilewas easily identifiablebecause of its bright plume,
low altitude,and relatively lowspeedof flight88.
Satellite imagery takenjust fourhours afterthe attack showsthat Iran maintained in the
Faw area an active cruise missile stagingfa~ility~~.
In the weeks prior to the attackonSea Isle City, eyewitnesses observed thelaunchingof
four similarmissile attacksfiom Iranian-controlledterritoryin the Faw area. These
missiles bore the sarnevisual signaturesofthe missilethat hit Sea Isle City: bright
plume, low altitude, and relativelylow speedof flightgO.
Fragments recovered from oneofthese missiles demonstratedit to be a Chinese-
manufactured HY-2missile ofthe type used by Iranduringthe Iran-Iraq War9'.
Counter-Mernorialp,aras.1.63, 1.70.
89See ibid.para.1.75.
90See ibid.para.1.70.
91See ibid.paras.1.71-1.73. Fragmentscollected froma missile launched fromIranian-controlledterritory in the Faw
area on 21January 1987yielded the sameconcl~sion~~.
Oneof the missiles Iranfired from the Faw arealanded south of Mina Abdullah, over 100
kilometers from the Fawarea, thus clearly demonstratingthat Iran'sHY-2missile had
sufficientrange to reachSeaIsle Ci@,whichwas locatedless than 100kilometers from
the Faw area when it was atta~ked~~.
Iran's President AliKharneiniannounced Iran'sintentionto attackU.S. targets in the
Gulffewer than threemonths earlier, saying "Theyhadbetter leavethe region, othenvise
we shallstrike them so hard they will regretwhatthey have d~ne~~."
Lloyd'sMaritime InformationService,the GeneralCouncil of British Shipping,Jane 's
Intelligence Reviewandother authoritativepublicsourcesconcludedwhat this evidence
makes abundantly clear: Iran is responsibleforthe missile attackon Sea Isle City95.
Particularly in light of Iran's exclusive control oftheterritoryin the Faw area fiom which the
missile that hitSea Isle Ci@was fired, this evidencefullysatisfiesthe burden of establishing that
Iran is responsible for the attackon Sea Isle Ci@96.
92See ibid
93See ibid., para. 1.59.
" Ibid, para. 1.31
95See ibid., para. 1.66.
96See Corfi ChannelCase, (UnitedKingdornv.Albania), Merits(hereinafter "Cor- Channel'i),
Judgrnent,I.C.J. Reports 1949, p.18 (in discussing Albania'sexclusive controlover the waters in which
mines were laid,the Court foundthat "the fact of this exclusiveterritorial control exercised by a State
within its frontiershas a bearing uponthe methods of proofavailableto establish the knowledge of that
State as tosuchevents. By reasonof this exclusive control,the other State, the victim ofa breach of
international law, is often unableto furnish direct proofof facts giving rise to responsibility. Such a State
should be allowed a more liberalrecourse to inferencesof fact and circumstantial evidence.This indirect
evidence isadmitted in al1systemsof law, and its use is recognizedby international decisions. It mustbe
regarded as of specialweight when itis based on a seriesof facts linkedtogether and leading logicallyto
a single conclusion"); ShabtaiRosenne, The Lawand PracticeoftheInternationalCourt, 1920-1996, Section2. Iran Used the Rostam Platformto Monitor and Reporton the Movements
ofSeaIsle City
1.43 Theevidencealso conclusivelydemonstrates thatIranused the Rostam platform to
monitor and reporton the movementsof SeaIsle City A.s noted above, U.S. tankers traveling
through the Gulf were required to passfewerthan 15nautical milesfrom the Rostam platform
because the Iranianexclusion zonerenderedoff limits routes northof Iran's offshore oil
platforms that commercial shippinghad followedpriorto the war. The Rostam platform,which
Iran acknowledgescontained a surfacesearch radarwith a range of48 nautical miles,was thus
ideally placed to monitor the movementsofU.S. tankers travelingthrough the Gulf.
1.44 WhenSea Isle Cit yassedby the Rostam platform as partof a U.S. escorted
convoy, the Rostam platform monitoredand reportedon its movements. On 8August 1987,the
Rostam platform transmitted the followingreport:
"2. THE CONVOY AT 172327WASSEENON RADAR BEARING 096DISTANCE
48 MILESFROM THE PLATFORMANDWAS TRACKEDAND PLOTTED.
3. THENUMBER OF MILITARYVESSELSIN THE CONVOYIS 6 SHIPS AND
THEY ARE TRAVELING IN SINGLEFILEAND THEIR CURRENT POSITION IS
VolumeIII, pp.1089-90 (3ded. 1997)("Theunderlyingtheorymaybestated asbeingthat, ingiven
circumstances(whichthe substantiveaw defines)iissufficientfortheapplicant Statetoestablishthe
conditionoffacttheresultofwhich willbeapresumptionr,ebuttablebytherespondentState,thatthe
respondentisliableinlaw.Furthermore,the presumptiomaybeestablishedbyreasonable inferences In
internationalawthisdoctrine isdevelopeinconnection withresponsibility rctsoccurringona
State'sterritory:thecircumstanceswhich inferentialprooisadmitted are determindythematerial
law, andthe effecisnotsomuchtoshifttheburdenofproofas tolay upontherespondentwhatmaybe
regardedasa burden of negativeproof'). 335DEGREES, DISTANCE21 MILES FROMTHE PLATFORM AND THEIR
COURSEAND SPEEDIS 285 DEGREES, 7 KNOTS.
4. IFAPPROVED, THEPLATFORM WILLTURN OFFTHE RADAR,AND ONCE
EVERY 15OR 30 MINUTES, WILLTURNONTHE RADAR AND PLOTTHE
CONVOY. FACTS ARE REPORTEDFOR INFORMATIONAND NECESSARY
ACTION.
SIGNED: WARRANT OFFICER 3 ?KARIMI?[illegible]97"
1.45 The composition and location ofthe convoyreportedcoincidewith the composition
and route ofa U.S.-led escort mission conductedaspart of Operation Earnest Will. Earnest Will
Mission 003left the Gulf of Omanon 8 August 1987at 0249hours. It consisted ofsix ships:
three tankersGasKing, OceanCity,and Sea Isle City-and three escort ships, the USS
Crommelin,the USSJarrett, andthe USSKidd. Theship's deck logfromthe USSCrommelin
shows that it maderadar landfall onthe ShahAllum ShoalRacon inthe vicinity ofthe Rostam
platform at0356on 9 August 198798.This log entryis consistent withthe report ofthe convoy's
location issued bythe Rostam platform,and leavesno doubt that Iranused the Rostarnplatform
to monitor and report on the movementsofa Isle City.This informationis depictedin Map 2.
1.46 On 11October 1987,Sea Isle Citywas againpart of a convoy aspart of Operation
Earnest Will. Between 10p.m. and 11p.m. on that date,Sea Isle Cityagain passed within 15
97SelectedMessagesfromArchiveof Incoming Messages,RostamOilPlatform,Exhib119.
98See USSCrommelin,Deck Log, commencing0000,Ol August1987 andending2400,31August 1987,
Exhibit205. @) 0238 hours,8 August1987
@ 0356 hours,9 August1987
DepartsKhawr Fakkan anchorage USS Crommelin makes radarlandfall
on ShahAllum Shoal Raconbearing
@ 2327hours,8 August 1987 293 2 degrees true at a distance of
Rostam platform reports sighting 41 3 nautical miles
a "six-ship convoy"on a "bearing 096 (26O11'N/053°08'Eapproximate)
distance 48 miles from the platform"
traveling in a singlefile at 7 knots @ 1622 hours,9 August1987
(25O53'N/053O42'approximate) USS Crommelinside lookout spots
possible mines
(26°48'N/051039'Eapproximate)
lnbound Earnest Will
convoys disperse near
Mina alAhmadi termihal
EarnestWill Convoy 11
0051 hours,Il October1987
USS Klakring enters Straitof Hormuz,
bearing 270 degrees, speed14knots.
(26O36'N/056O33'Epproximate)
2000to 2100 hours,11October 1987
USS Klakring passes Rostam and
Rakhsh oil platforms.This is calculated
from the course and speed at the
midnight watch turnover in item
(25°48'N/053002'Eapproximate)
0008 hours,12 October1987
USS Klakring watch changes
Heading311degrees at 14knots ' Gulf of Oman
(26°20'N/052021'Eapproximate)
nodefined \
\ boundary
1656 hours,13October1987 -38 a-é11 ' o Utop:ted - \
USS Hawes dropsanchorat ''4n
destination USS Klakring arrives '".,
four minuteslaterat 1700 hours Arabi3 \'"., Eiawiafes 01~1t"ll
'% nneceaanlyaumontauvenis
MAP2nautical milesof the Rostam platform, and wasagainexposed to monitoring fromR0stan-1~~.
Five days later, at the end of this voyage, Iran launcheda missile attack againstSeaCity.
Section 3. Iran's Pattern of Missile Launchesfromthe Faw Area is Consistent with its
Acknowledged Policyof TargetingKuwait's OilTrade
1.47 The missile that hit Sea Isle Citywas one of a series of missiles launched by Iran
from the Fawarea during 1987'0°.Each ofthesemissilelaunches was inthe direction of
Kuwait's oil loading terminalat Al-Ahmadi SeaIsland. Theday before Iran attacked Sea Isle
Ci@, it launched a missile fromthe Faw areathat hit theU.S. owned tankerSungari, which was
anchored south of Al-Ahmadi and near the locationwhereSea Isle Citywas hit. In September
1987,Iran launched three missiles in the samegeneraldirection: one on September2 that landed
inthe water northeast of Faylakah Island; oneon September4 that landedsouth of Mina
Abdullah; and one on September 5that landedin KuwaitBay. Iran also launchedtwo missiles
from the Fawarea in January 1987,bothof which landednear Faylakah Island.
1.48 These missile launches are consistentwith Iran's acknowledged policyof attacking
ships carryingKuwaiti cargo1O'.By firingmissilesinthe direction of the Al-Ahmadi Sea Island
99SeeUSS Klackring,Deck Log, commencing 0431, 10October 1987and ending 2400, 14 October 1987,
Exhibit 206.
'OSee Counter-Memorial, paras. 1.54-1.62.
'OSee Nonvay Cable, Exhibit 198;Statement of Thomas Flamminio, Aerospace Engineer,U.S.
Department of Defense, Exhibit 207.Terminal, Iran could hope to preventshipsfrom traveling to and fromthe terminal, and thereby
disrupt Kuwait'soil trade. In light of Iran's desire to disruptthis trade, Iranhad a clear incentive
to launch missileattacks directedtowardAl-Ahmadi.
Section4. Iran's Efforts to Deny its ResponsibilityareInconsistentand Incredible
1.49 In its desperation to deny its responsibility for theSea Isle City attack in spite of
this substantial body of evidence,Iranhas offered this Courtan ever-shiftingset of assertions,
apparently unconstrainedby anyconcern fortheir veracity. None of Iran'svarious accounts of
the attack is credible.
1.50 Iran began by assertingthat it could not havebeenresponsible forthe Sea Isle City
attack because it did not maintain missile sites on the Faw Peninsula. Iran's assertionwas
categorical and without reservation:
"Thetrue explanation is that the missile was neverfiredby Iran! Therewas, infact, no
Iranian missile-site in theFaopeninsula which theUnited States could have attacked.
Iran's own conclusion isthat themissile was firedby Iraq, frommotives no more devious
than the Iraqi attack on the U.S.S. Stark,or the hundredsof attackson vessels, including
Kuwaitivessels, by Iraqi aircraftand Iraqi Silkwonn missiles during the previous five
years'02."
'O2Memorial, para. 4.74 (emphasis added). 1.51 Without any explanation,Iran hasnow abandoned this untruthfulposition
completely. Confronted with satellite imagery demonstratingIraniancontrol of an active cruise
missile staging facility inthe Faw area'03,Irannow acknowledgesthat it capturedthree missile
sites in the Faw area in early 1986. Iran's Reply states,in direct contradictionto its earlier
representationto this Court, that
".. .it is true that Iran captured three Iraqi missile siteson the Faopeninsula as part of its
counter-offensiveduring the course of 1986. These sites contained concrete shelters and
fixed launching pads for Iraqirnis~iles'~~."
Iranadds, however, thatbecause "al1accessroads to the missile sites were totally destroyed",
these sites "became useless and remained inoperativeduring al1the time that Faw was under
Iraniancontr01."'~~This assertion is also completely false;U.S. satellite imagerytaken on 16
October 1987 -the day of the attack onSeaIsleCit y shows vehicles operatingon the roads
leadingto oneof the Iranian missile sitesonthe Faw peninsula and in the vicinityof the site
itselfIo6.Iran's missile sites were intact, accessible,and capable of firingmissiles like the one
that hitSeaIsleCity.
1.52 Iran also suggests that the imagery ofIranianmissile stagingareas that the United
'OSee U.S. reconnaissancesatelliphotographs,Exhibit94.
'O4Reply,para.4.19.See alsoStatementofMohammadYoussefi,Reply Vol. VIp ,ara.14.
'O5SeeStatementof Mohammad Youssefi,Reply Vol. VIp,ara15.
'O6SeeU.S. overheadimageryoftheFawarea(hereinafter"Imagery")E ,xhibit208,image 5.States submitted with its Counter-Memorial is insufficientto demonstrate that Iran maintained
missile launching sites inthe Faw area1O( 7although, as notedabove,Iran now acknowledgesthat
it did maintain such sites). To removeany doubt on this point,the United States is submitting
with this Rejoinder additional imagery showing the existence of fourHY-2missile sites on
Iranian-controlled territory in the Fawarealos. Duringoral proceedingson the merits, theUnited
States will present expert testimony toexplain and confirmto the Court the substanceof this
evidence and the other overhead imagery thatthe UnitedStateshas introduced in thiscase.
1.53 Faced withthe loss of its chief defensewith respecttothe Sea Isle Ciiy attack, Iran
has invented a newone in its Reply. Iran now assertsthat, in additionto the Iranian-controlled
missile sites inthe Faw area (the existenceof which Iranhad previously denied), Iraq retained
control over an additional siteinthe vicinity. Iran assertsthatIraq could have used this site to
launch the attack on Sea Isle Ci@. As was the case with Iran's last assertion, U.S. satellite
imagery demonstrates that this assertionis completely false;no such Iraqi site existed atthe time
of the attack onSea Isle Ciiy.
'O7See Reply,paras.4.21-4.24;Statementof ColonelMahmoodFarshadfarI,ranReply VolVI.,para.3.
'O8Imagery,Exhibit208, images 2-11. 1.54 Iran has providedthe Court an undatedphotograph montage whichit asserts was
taken "beforethe capture of theFaw Peninsula" showingthe existence of an additional missile
sitein the Faw area apart fromthose controlled by IranIo9.The Statement ofMohammad
YoussefiStatesthat this additionalmissile sitewas locatedat coordinates 300012N-481705E on
the front part of the Faw Peninsu1a''O.
1.55 U.S. satellite imagerytaken between 5May 1987and 13November 1987
demonstratesthat no missile site existed at that time anywhere inthe vicinity ofthe location
specifiedby Iran1". Overheadimagery confirmsthat a missilesite was constructed nearthat
location, at coordinates 295806N-0481955Earound April1989,but no such sitewas there in
October 1987Il2.
1.56 Like Iran's previous assertions, Iran's assertionthat an Iraqi-controlledmissile site
inthe Faw areacould havebeenthe source ofthe attackon Sea Isle Cityis clearly and
demonstrably false. OnlyIranpossessed missilelaunchingsites in the Faw area at the time of
the attack on Sea Isle City,andthus only Iran couldhave launched an attack fromthe Faw.
'O9Statement of Mohammed Youssefi, Reply Vol. VI, para. 8.
"O See ibid.para.9.
"' Imagery, Exliibi208, images 9-12.
"' Imagery, Exhibit208, image 13. Overhead imageryfirstdisclosedthe constructionof amissile site atthis
location in April1989;the imageofthis site contained in image13 was taken in October 1994. 1.57 Iran attempts to create doubtsas to its responsibilityfortheSea Isle Ci@attackby
offering this Courtthe unsustainable theory thatIraqattacked Sea Isle Cityusing a missile that
traveled alonga circuitous route (rather than in a straight line). Iranarguesthat such a missile
would concealthe location fromwhichit had beenfired,making a missile firedfrom Iraqi-
controlled territory appear as if it had been fired fromIranian-controlledterritory. Accordingto
Iran's Reply, ". .. it was entirely possible for a missile targeting Kuwait's harbour tobe launched
from the remaining Iraqi site in the vicinityof Fao andto be programmedso as to fly over both
Bubiyan and Faylakah Islands en route toits destination'l3."Onceagain,Iran's theory is clearly
and demonstrablywrong.
1.58 First, Iran's theory is based on an Iraqi missile beingfired"fromthe remaining Iraqi
site in the vicinityof the Fao". Asthe United Stateshas conclusively demonstrated, no such
Iraqi site existedat the time of the attackon Sea Isle Cio. Thus, Iraq wasnot in a positionto fire
the missile thathit Sea Isle Ci@even if the missile wereable to travelin a circuitous route.
1.59 Second,the missile that hitSea Isle Citywas not equippedwith a guidance system
capable of guidingthe missile along a circuitous route. Iran's expert,JeanFrancois Briand,
asserts that Iraqcould have fired an HY-2missile fromthe alleged "fourthsite" and prograrnmed
it to execute atum near the tip of Faylakah Island that would haveallowedthe missile to assume
- --
113Reply, para. 4.51.a course consistent with thatofthe missile that hitSea IsleCity114. Mr. Briand's statement is
incorrect.
1.60 As explained in the Statement of Mark Pitt, the guidance systemof the HY-2directs
the missile in a straight lineuntil a timer activates the missile's seekerandthe seeker begins to
search fortargets. The seekersearchesfor targetsby using a radarbeamto scanan area 12
degreesto the right and left ofthe seeker'scenter. The seekerthen locks ont0 the first object of
suitablesize it finds within this area and within the 17km range of the seeker's radar,and guides
the missileon a course to hit that target'15.
1.61 This system doesnot allow the missileto beprogrammedto turn at a particular time
as assertedby Mr. Briand. Hadthe missile begunto execute aturn near the tip of Faylakah
Island, as Mr. Briand asserts, it would have onlydone so because its seekerhad already been
activated and had lockedont0 atarget toward which the seeker was directingthe missile. Such a
target wouldneed to be within 17km of the tip of Faylakah Island,becausethis is the maximum
range of the missile's seeker. The locationwherethe SeaIsle City was hit was about 60 km from
the tip of Faylakah Island,making it impossible for the missileat that locationto selectSea Isle
City as a target'I6.
Il4SeeRapport de M.JeanFrancoisBriand at para ..09andaccompanying map,Reply, Vol. VI.
StatementofMarkPitt,SeniorMissileAnalyst,AustraliaD nefenceIntelligenceOrganisation, paras.-5,
Exhibit209.
Il6See ibidpara. 11. 1.62 As illustrated inExhibit21O"',Iran'smissile sites inthe Faw area were orientedto
aim missiles directly towardKuwaitHarbor, whereSea Isle Citywas anchoredwhen it was hit.
As demonstrated above, the HY-2missile that hitSeaIsle Citywas capableof following onlya
direct path toward its target. OnlyIran was in a position tolaunchthis missile.
D. THEMISSILE THAT HITSm ISLE CITYWASNOTLAUNCHEF DROM THEAIRORSEA
1.63 In a fùrther effortto divertthe Court's attention fromthe evidence establishing its
responsibility forthe attack on Sea IsleCity,Iran invitesthe Courtto speculatethat the missile
that hit Sea Isle Citycould have beenlaunchedby Iraq from the air or sea. Beyond observing
that Iraq operatedboth an airforceand a navyat the time of the attack onSea Isle City,Iranhas
offered the Courtno evidenceto supportan air or seanch theory. Asthe United States
demonstrated in its Counter-Memorial,the physical evidence collected fromthe series of missile
attacks from the Faw area in 1987is inconsistent with Iran's speculationthatthe missile that hit
Sea Isle Citycouldhave beenlaunchedfrom the air or sea'l8. Onthe contrary,that evidence
serves toconfirmthat the missilewas launchedby Iran from land in theFaw area.
1.64 In sum, Iran'sresponsetothe evidence demonstrating its responsibility for the
attack onSea Isle Cityamountsto little more than a series of unsupportedand frivolous attempts
"'SeeReferenceMap,Exhibit 210.
"*SeeCounter-Mernorial, para1.71-1.73.to escape responsibilityby blaming Iraq. As the evidencepresented bythe United Stateshas
demonstrated, Iran'svarious conjecturesabout Iraqi responsibilitysimplyare not credible.
Indeed,Iran's abandonmentof its previous representations,andthe United States'systematic
disproving of Iran'snew assertionsandtheories, showthat Iran's pleadings have providedthe
Court nothingon these points on whichthe Court may rely.
1.65 In the period followingIran's attack onSeaIsleCity,Iran continuedto attack U.S.
and other neutral shipping in the Gulf. According to Lloyd's Maritime Information Service, Iran
was responsible for attacks onno fewer than 57 neutralvesselsin the Gulf between 16October
1987(the date ofIran's attack onSeaIsle City)and 14April 1988(the date ofIran's attackon
the USSSamuelB.Roberts)' 19.Theseattacks included the 15November 1987attack on the U.S.
owned tankerLucy,the 16November 1987attack on the U.S.owned tankerEssoFreeport, and
the 7 February 1988attack onthe U.S. owned tankerDiane'20.There was thus no break in Iran's
attacks inthe period following the attack onSea Isle City;ratherthese attacks continued
unabated.
Il9See "VesselsReported toHaveBeenAttackedandDamagedDuetoActsof HostilityBy theIraqisand
IraniansintheGulfAreaSinceMay1981 ,"Lloyd SMaritime InformationService, Exhibit9.
''OSee infi.a,PartVI. CHAPTERIV
IRAN IS RESPONSIBLEFORTHEATTACK ONTHE USSSAMUELB.ROBERTS
Section 1. TheEvidenceDemonstratesIran's Responsibility for the Attack
onthe USSSamuelB. Roberts
1.66 The United Statesdemonstratedin its Counter-Memorialthat Iran is responsible for
the 14April 1988attack on theU.S warship USSSamuelB. Roberts. Specifically,the U.S.
Counter-Memorial showed that:
USSSamuelB. Robertshit a mine while sailingnearthe ShahAllum Shoal inthe central
GulfI2'.
The day after the attack,U.S.Navy diversdiscoveredtwo additionalminesin the same
vicinity. The mines weremoored to anchorsand not encrustedwith marine growth,
indicating that theyhadbeen laid re~ently'~~.
The two mines bore serialnumbers whoseformat matched serialnumbers foundon mines
aboard the IranAjr in September 1987andtwo other Iranianmines discoveredin 1987123.
Three days after the attack,mine-clearing forcesfrom Belgium andthe Netherlands found
additional mines in the vicinity which alsoboreIranian serialn~mbers'~~.
Onthe day of the attackonthe USSSamuelB.Roberts,the Commanderofthe Iranian
Navy, Commodore MoharnmadHoseynMalekzadegan,acknowledgedthat theIranian
Navy had been engagedin "awholeheartedtask ... over the pastyear, comprising
-
12SeeCounter-Mernorialp ,ara1.105.
"' Seeibid.para. 1.106.
12See ibid.
Iz4Seeibid.,para.1.107. indirect blows in particularto the U.S. fleet, affectingbothits warships and itsmerchant
vessels, with mines ormissiles'25. .."
1.67 Put simply, the evidence gatheredby U.S., Belgian,and Dutch sources shows
conclusively that Iran laid a minefieldin the central Gulf shortly beforethe USSSamuelB.
Roberts hit one of these mines while transitingthe area. Iran's responsibility forthe attack on the
USSSamuelB.Robertsis clear.
Section2. Iran'sDenial of Responsibility for Mining is Refuted by the Evidence and
Conclusionsof theInternational ShippingCommunity
1.68 In spite of this evidence, Iran persistsin its denialof its responsibility forthe mine
attack on the USSSamuelB.Roberts. Indeed, Iran asserts to this Court thatit was not
responsible for any mine attackson neutral shipping duringthe Iran-Iraq War. Accordingto
Iran's Reply "the only mines laidby Iran were laid inthe KhorAbdullahchannel north of
Bubiyan Island. These mines were laid for defensivepurposesto prevent Iraq from using this
watenvay to attack Iranianpositions. Suchmines had no effecton commercial ~hipping'~~."
1.69 Yet once again,Iran's denials are simply not credible. The evidence compiledby
the international shipping community shows not only that Iranwas responsible for the attackon
the USSSamuelB.Roberts,but that Iran made a generalpractice of usingmines to attack neutral
Iz5Ibid para.1.112.
Iz6Reply, para. 5.25.shipping inthe Gulf2'. In additionto the evidence collectedby U.S., Belgian,and Dutch sources
noted abovein connection withIran's mine attackonthe USSSamuel B. Roberts, this evidence
includes:
The discovery by U.S.forces ofthe Iran Ajrin the act of layingmines inthe central
Gulf on 21 September1987and evidencethatthe Iran Ajrmaintained
communications withIran's offshoreoil platf~rms'~~.
The discovery by ajoint Kuwait-United Statestearn of a minebearing Iran's
distinctiveserialnumbersand exhibiting otherfeatures of Iranianmines from waters
off of Al-Ahmadi inthe northern Gulf in June 1987129.Neutral vessels that struck
mines in this areaincludedthe Russian flaggedtanker Marshal Chuykov (16 May
1987),the Liberian flagged Primrose (27May 1987),the Greekflagged tanker Ethnic
(9 June 1987),andthe Liberian flagged tanker Stena Explorer (19 June 1987)130.
The discovery by UnitedKingdom minesweeping forces of minesbearing Iran's
distinctiveserialnumbersand exhibiting otherfeatures of Iranianmines from waters
off thecoast of Fujayrah,nearthe entranceto the Gulf, in October 198713'.Neutral
vessels that struckminesinthis areaincluded thePanamanian flagged tanker Texaco
Caribbean (whichwascarryingU.S. ownedIranian crude at the time ofthe attackI3*)
'27OntheviewoftheCourtthat evidence fromdisinterestedwitnessesisofprima facie superior
credibility,seeupra,note 54.
lZgSeeCounter-Memorialp ,aras.1.40-1.47
SeeStatementof KuwaitNavalForceOfficialsRegardingthe Miningof Waters NearAl-AhmadiPort
DuringtheIran-IraqWar,21May1987,Exhibit34;NavalTechnical IntelligencC eenter,Foreign
MaterialExploitationMemorandum Report,"ClusterGin,"May1988,Exhibit38;StatementofDonald
Jones,3 May1997, Exhibit37.
I3OSeeStatementofKuwait NavalForceOfficials,para.6,Exhibit34.
131SeeUnitedKingdomMinistryofDefence,"MineClearanceOperations Off FujayrahBy HMShips -
21 Septemberto 25October1987,"Exhibit53;StatementofDonaldJones,3May1997,Exhibit 37.
13'See StatementofRobert O. Phillips,Senior Counsel, TexacI,nc.,27February2001,(hereinafter
"TexacoStatement"), Exhibit2 11. (1O August 1987)and Anita, a UAEregistered motor supplyvesse1(1 5 August
1987)'33.
The 21 August 1987statementby then-Iranian Majlis SpeakerAli Akbar Hashemi-
Rafsanjani that "ifwe intendto plant mines, wellthen, O God, it isquite a different
storybecause we canmove fromany point. Wecan coveran area for half an hour,
making it unfit to use for shipping. This is fully within Ourme an^'^^."
The conclusions ofinter tank^'^^ L,loyd's Maritime InformationSer~ice'~~ ,ane 's
Intelligence Re~iew"~, and the GeneralCouncil of BritishShi~ping'~' that Iran was
responsible for mine attacksonneutral shippingin the Gulf.
1.70 Iran's attack on the USSSamuel B. Roberts was thus consistent with its well-known
practice of using mines to threaten and attackneutral shipping in the Gulf. As notedabove,
Iran's attacks wereof great concem to theentireinternational shipping community,and ledthe
13'United Kingdom Ministry of Defence, "Mine Clearance Operations Off Fujayrah By HM Ships- 21
September to 25 October 1987,"Exhibit 53.
'34See "Majlis Speaker's Prayer Sermon Views Gulf Events,"Foreign Broadcast Information Service,21
August 1987, Exhibit 55.
135See "IranIIraqConflict, The Tanker War -No End?"InternationalAssociationofIndependentTanker
Owners, June 1988,p. 25, Exhibit 1(describingIranian minelaying activities, includingthe attacks on
Marshal Chuykovand TexacoCaribbean,as part of discussion of Iran's methodsofassaults on
shipping).
13'See Statement of Norman Hooke, Assistant Managerof Data Services,Lloyd's MaritimeInformation
Service, 15May 1997(hereinafter "Statement of Norman Hooke"), para. 22, Exhibit 10("... Iran useda
variety of methodsto assaultships" including"contactmines laid in shipping channels").
I3'SeeTedHooton,"TheTankerWarintheGulf 1984-1988,"Jane'sIntelligenceReview,May 1992, p.220,
Exhibit 4 (describing Iranian minelaying activities, including the attacks onBridgeton, Anita,and USS
SamuelB.Roberts in discussion of the Iranian mining threat inthe Gulf).
13'See "IranIIraq: The Situation in the Gulf, Guidance Notes for Shipping,"General Councilof British
Shipping, February 1988,p. 30, Exhibit 2 (reportingon Iranian mining activities, including inthe Mina Al
Ahamadi deepwaterchannel and off the coastof Fujairah).United States,the United Kingdom,the Netherlands, Belgium, France, Italy, andthe Soviet
Union to dispatch minesweeping vessels to the Gulf in an effortto protect neutral shipping from
Iranian mines. In light of this evidence,and the internationalcommunity'sactions inresponseto
it, Iran's denial of its responsibilityfor the mining simplycannot betaken seriously.
Section 3. Iraq is not Responsiblefor the Attack onthe USSSamuel B.Roberts
1.71 As it did in the caseofthe Sea Isle Cit yttack, Iran attempts to escapeits
responsibility for the attack onthe USSSamuelB.Robertsby invitingthe Court to speculate that
Iraq couldsomehow have beenresponsible forthe attack. As the United States observed in its
Counter-Memorial, Iraqcould not,and did not, lay mines in the centralGulf where the attack on
the USSSamuel B. Roberts o~curred'~~I.ran's only responseto this fact is the fancihl
hypothesis thatthe mine that hitthe USSSamuelB.Roberts"probably floateddown from the
war zone inthe north -very possiblyfromthe ShattAl Arab or from the entranceto the port of
Bandar Khomeini, where Iraqwasknown to have laidmines'40."Iran does not explain why it is
reasonable to assume that the USSSamuelB.Robertswashit by a floating mine when two
additional anchored Iranian mineswere foundinthe vicinity imrnediatelyfollowing the attack.
Moreover,Iran's own expert indicatesthat Iraq's useof moored contactmines similar to those
-
'39See Counter-Mernorialp ,aras.1.109-1.111.
l4OSee Reply,para. 5.15.used by Iran "was not known beforethe 1990-91 PersianGulf conflict", suggestingthat Iraq did
not use such mines during the Iran-Iraq War atallI4'.Yet again, Iran's representationsto this
Court are disingenuous and cannot be taken seriously.
14'See Rapport de M. Jacques Fournial, paras. 1.3,1.11,Reply, Vol. VI.(". .après l'invasion duKoweït
en août 1990, l'Irak fit en usage intensifde la mine russe MYAMde septembre àdécembre 1990 pour
bloquer lesroutes maritimes desservantles portes et les plates-formes pétrolikoweïteienes"; "Les
Irakiens ont développéla mine LUGMqui est aussi une mine à orin dérivée dla M-08. Cette mine était
inconnue avant le conflit du golfe Persiquede990-199 1"). CHAPTERV
THEUNITED STATESTOOKLIMITED, LAWFUL DEFENSIVEMEASURES
AGAINST IRANIANOFFSHOREOIL PLATFORMSIN RESPONSETOIRAN'S
ATTACKSON SEA ISLECITYANDUSSSAMUEL B. ROBERTS
1.72 As the United Statesexplainedin its Counter-Memorial,in response to Iran's
attacks againstSea Isle Cifyand USSSamuelB.Roberts, the United States took limited,lawful
measures in self-defense against theRostarn,Sirri,and Sassanoil platform c~rnplexes'~~T . he
United Statestook these actions as a last resort,only afterrepeateddiplomatic effortsfailed to
persuade Iran to stopits illegal attackson U.S.and other neutral~hipping'~~.n each instance,
the limited objective of the United Statesactionwasto reduce oreliminate Iran's abilityto use
itsoilrlatfoms to attack U.S. ~hipping.'~~I.n each instance,the United States providedadvance
warnings in English and Farsito personnel on theplatfoms that the platforms wouldbe attacked,
and allowed time for those personnelto de~art'~~.In each instance,the United Statespromptly
reported its actionin self-defenseto theN SecurityCouncilin accordance with Article51of
the UN Charter'46.
'42SeeCounter-Mernorial, paras1..99-1.102,.121-1.127.
'43Seeibid,paras.1.22-1.24,1.39, 1.47nfra,paras.4.07-4.11,4.17.
'44Seeibid.,paras. 1.991.121.
'45See ibid.paras.1.100,1.122-1.123.
'46Seeibid.,paras. 1.102,1.127. 1.73 In addition, ineachinstancethe United States'actions againstthe platforms were
directed againstthe platforms' abilityto launchattacksagainst neutral shipping;theactions were
restrained and were notdesignedto inflict economicdamage,as Iran alleges. The United States
actions involvedfiring artilleryshellsat, andplacing explosivecharges on, the "topsides"of the
platf~rms'~~ - that is, the portionsofthe platformsabovethe waterline on whichIranianmilitary
personnel and equipment could bestationed. The United States'actions didnot targetthe
"jackets"of the platforms -that is, the portionsof the platformsbelow the waterline including
the foundation on which thetopsideof the platform rests.
1.74 Nor did these actionstarget the underseapipelines used to transport oil produced on
the platforms to Sirri and LavanIslands forprocessingand ultimate saleto exportcustomers.
These pipelines function independentlyfromthe productionportions of the platforms, and could
continue to be used to transportpetroleum from other operating platforms even afterdarnageto
thejackets of platforms to whichthey wereconne~ted'~~.
1.75 Iran's argumentthatthe United States' defensiveactions were "designedto cause
maximum economic damageto Iran'49" thus failsto withstandeven casual scrutiny. Had the
United States'objective beento causethe economic damage, it would havedirectedits actions
--
'47Statement of CommandeM r arcThomas, paras .-11,Exhibit 61.
14'Statement ofEdwardO.Price,former Corporate Vice-Presidef ntrExplorationandDevelopment,
Arabian American OilCompany(hereinafter "Statemen of Edward O.Price"), Exhibit 212.
149Reply,para 4.74 et seq.against thejackets of the platforms and theunderseapipelines usedto transport oil fromthe
platforms to Lavanand Sirri Islands,ratherthan targeting only thetopsides of the platforms.
Moreover, had the United Stateswished to inflicteconomicdamageon Iran, it would have
chosen targets otherthan the Rostamand Sassanplatforms, which were producing nooil at the
time of the U.S. actions, and the Sirriplatform,whichwas producing a relatively smallamount
of oil at the time of the U.S. action against it. As ViceAdmira1Anthony Less, then Commander,
Joint Task Force Middle East noted:
"[Wle did not generate military optionsforthepurpose of damaging Iran's economicand
commercial interests. Had we soughtto inflicteconomic damage, we would have
ultimately attacked,or at a minimum, consideredattacking a varietyof more significant
economic targets such as Iran'smajoroil facilityat Kharg Island,or the key oil loading
facility atirri Island. But we did not evenconsiderdoing so, because Ouraim was to
addreqsIran'sthreat to Ourforces andneutral shippingflyingthe U.S. flag'50."
The U.S. actions appeared to have some deterrenteffect on attacks against U.S. shipping.As
noted by Rear Admira1Harold Bernsen, followingthe U.S. actions againstthe Rostarnplatform
complex "Iranianattacks on neutral shippingin the vicinityof Rostam decreased dramatically,
indicating that Ourintelligence about Rostam hadbeen~orrect'~'."
''OStatementof Vice AdmiralAnthonyLess,para. 9,Exhibit 48.
"' Statementof RearAdmiralHaroldBernsen,para. 29, Exhibit43 PARTII
THE COURT SHOULDDENYIRAN THE RELIEF IT SEEKS BECAUSEOFIRAN'S
OWNILLEGAL CONDUCT
INTRODUCTION
2.01 Iran's attackson U.S.and other neutral shippinginthe Gulf violated not only the
1955Treaty but also other principlesof international law relatingto the illegal useof force. Iran
used its oil platforms in its attackson merchantvessels and disrupted shipping inthe Gulf,
leadingthe United Statestotake defensive measures to protectU.S. shipping. Yet, despitethese
manifestly illegal actions,Iran hasthe temerity to ask this Court for relief from darnagetothese
same oil platforms.
2.02 This Court shoulddeny Iran the relief itseeksbecauseof Iran's illegal conduct,
with respect both tothe 1955Treaty and to its other obligationsunder internationallaw. Three
related principles support this result. First, a party that acts improperlywith respectto the
subjectmatter of a dispute is not entitledto relief. Sacpartythat has itself violated
obligations identical to those that arethe basis for its Application is not entitledto relief. Finally,
an Applicant is not entitledto relief when the actions it complains of werethe result of its own
illegal conduct. Consistent with eachof these principles, the Court should deny Iran the relief it
seeks. CHAPTER1
THECOURT SHOULDDENYRELIEFTOIRANBECAUSEIRANACTED
IMPROPERLY WITHRESPECTTO THESUBJECT MATTEROFTHE DISPUTE
2.03 Iran comes beforethis Court withuncleanhands: it seeks relieffor damageto the
very oil platforms it had used illegallyto attackU.S.andother neutral shippinginthe Gulf. This
Court shoulddeny Iran this relief, fora tribunalshould"refÙs[e]relief to aplaintiff whose
conduct in regard to thesubject-matterof the litigationhas been impr~per'~~".
2.04 Several opinions of membersof this Court supportthe principlethat a partycannot
benefit fromits own wrong: nulluscommodumcaperedesua injuriapropria. Judge Read's
dissenting opinion in lnterpretationofPeace Treatiesstatesthat, "'in anyproceedingswhich
recognised theprinciples ofjustice', no governmentwouldbe allowed to raisean objection
which would 'let such a governent profit from itsown~rong"~~." Judge Ajiboladrewthe
sarne conclusionin his separateopinion inApplication of the Conventiononthe Preventionand
Punishmentof the Crimeof Genocide, noting: "that[an]applicant 'mustcomewith clean
hands'. '54"TOthe same effect,JudgeAnzilotti statedinLegaIStatus ofEasternGreenlandthat
Is2TheDiversionof Waterji-omtheMeuse,Judgment, 1937,P.C.I.J., Series A/B,No.70, separate
opinion ofJudge Hudson p. 77,quoting13Halsbury's Lawsof England,p. 87(2" ed.1934).
'53B.Cheng, General Principles ofLaw asApplied byInternationalCourts and Tribunalsp15 1(1953),
quoting Interpretation of Peace Treatieswith Bulgaria,Hungavyand Romania,FirstPhase,Advisory
Opinion,I.C.J.Reports 1950,dissentingopinionofJudge Read, p.244.
154
Application of the Convention on thePrevention and Punishment ofthe Crimeof Genocide,Provisional
Measures, Order,I.C.J. Reports1993,separate opinion,ofJudgeAjibola 13September 1993, p.395."an unlawful action cannot serve as the basis for an action at la^'^^."These authorities confirm
the proposition that a State cannot act wrongfully in relation to the subject matter of a dispute
and then obtain redress from the other party through an international trib~nal'~~.
2.05 Having committed manifestly illegal armed attacks on U.S. and other neutral
shipping in the Gulf, Iran comes before this Court, grossly misrepresenting the facts ofthe case,
and asks for relief for damage to its oil platforms in alleged violation of the 1955Treaty. Yet
Iran used these very oil platforms - the subject matter of its application- in its attacks on U.S.
shipping in contravention of the same provision of the 1955Treaty as well as other international
law obligations. Moreover, Iran was fully aware that its policy of attacking neutral shipping in
Is5Legal Status of Eastern Greenland,Judgment, 1933,P.C.I.J., Series A/B, No. 53, dissenting opinion
ofJudge Anzilotti, p. 95. See alsoMaritime Delimitation intheArea between GreenlandandJan Mayen,
Judgment, I.C.J. Reports 1993, separate opinion ofJudge Shahabuddeen , p. 195("When Courts are
required to apply such standards as ...clean hands ...,thenjudgment cannot turn on logical
formulations and deductions, but must include a decision as to whatjustice requires in the context of the
instant case.. ..They are predicated on fact-valuecomplexes, not on mere facts"(citations omitted).
Is6Parties appearing before this Court have also relied on this principle. See Legaliy of Useof Force
(Yugoslavia v. France), Requestfor the Indication ofProvisionalMeasures, 10 May1999,Translation of
CRI99117, p. 9 (France arguing that "a party which employs bad faith and artifice may not derive any gain
or benefit therefrom"); Legality of Useof Force (Yugoslavia v.UnitedKingdom),Requestfor the
Indication of Provisional Measures, 11May 1999,CRl99123,p. 9 (United Kingdomasserting relevance
of wliether party seeking Court's assistancecomeswith clean hands). Moreover, in the opinions cited
above, the treatment of the "clean hands" issueis plainly contrary to the litany of objections to the
applicability of the doctrine suggested by Iran: the doctrine's applicability was notlimited to the
admissibilitystage of the proceedings(Reply, para. 8.13); it was not implemented by "other institutions"
but in its own right (Reply, para. 8.24);and it was notapplied solely in the context ofdiplomatic
protection (Reply, para. 8.11). In any case, the argumentthat the clean hands doctrine is applicable
"only" to diplomatic protectionclaims entirely missesthe point. This Court's jurisprudence makes clear
that when a State decides to espouse a claim of itsnational, his claim becomes the claim ofthe State.
See, e.g., Panevezys-Saldutiskis Railway,Judgment, 1939,P.C.I.J., Series A/B,No. 76,p. 16.the Gulf wasillegal, having admitted asmuchto theNonvegian amba~sador'~'.Becauseof its
illegal activity andunclean hands, Iranis precludedfromobtaining relief in this case. Shouldthe
Court findthat Iran, in bringing its claim before the Court,has disregardedthe principle of good
faith. the sameresult should ~btain'~'.
15'SeeNonvayCable,Exhibit198;see alsosupra,paras. 1.13-1.14.
15'See Landand Maritime Boundarybetween CameroonandNigeria, I.C.J.Reports 1998, p. 296 ("the
principleof good faith isawell-establishedprincipleof internationallaw") . CHAPTERII
THE COURTSHOULDDENY RELIEFTO IRANBECAUSEIRANITSELF
VIOLATED OBLIGATIONS IDENTICAL TO THOSETHATARETHEBASIS FOR
ITS APPLICATION
2.06 Iran seeks relief fromthis Court for alleged violations of obligationsunder Article
X,paragraph 1of the 1955Treaty,the very sameobligations that Iranhad itself violated
previously in agross and systematicmanner. Thejurisprudence of this Court andits predecessor
in cases where reciprocal obligationsexistctatethat Iran shouldbe deniedthe relief it
requests.
2.07 In Diversion of Waterfiom the Meuse,the Permanent Court heldthat Belgium
could not be ordered to discontinueits use of a lock whilethe Netherlands continued a similar
activity. Noting that the Belgianconduct ofwhichthe Netherlands complainedwassimilar to
the Netherlands' own conduct in similar circumstances,the Court "[found]it difficult to admit
that the Netherlands are now warrantedin complainingof the constructionand operationof a
lock of which they themselvessetan exampleinthe pa~t'~~"J.udge Hudson,writing separately,
explained that "wheretwo partieshave assumedan identical or a reciprocalobligation, onety
which is engaged in a continuingnon-performanceof that obligationshouldnot be permitted to
take advantage of a similar non-performanceof that obligationby the otherparty'60".
15Diversion of Water9om theMeuse,Judgment, 1937,P.C.I.J.,Series A/B,N70,p.25.
I6Zbid., separate opinion of JudgeHudson,p. 77. 2.08 Vice-President Alfaro applied the reasoningbehindthe Meuse case to Temple of
Preah Vihear inhis separate opinion:
"[Iln the Meuse case (1937),it was held that, wheretwo States were bound by the sarne
treaty obligations, StateA could not complainofan act by State B of which it itselfhad
set anexample in the past. Nor indeedmay a State, while denyingthat a certain treatyis
applicableto the case, contendat the sametime that the other partyin regard to thematter
in dispute has not complied with certainprovisions of thattreat~'~'."
Thus, in Preah Vihear, Vice-President Alfaro supportedthe denial of relief wheremutual,
identical obligations had been violated. Evenmoreimportantly, he madeclear that a State
cannot invoke a treaty with respect to the actsofanotherparty, while simultaneously denyingthe
treaty's applicationto its own a~ts'~~.
2.09 Here, Iran repeatedlyand systematicallyviolatedthe 1955Treaty through its attacks
on U.S. shippingin the Gulf, givingrise to U.S.actionsin self-defense. Just asthe Netherlands
in theMeuse case could not obtain relief for violationsof amutual obligation that it had
breached, so Irancannot be permitted to do so here. Irancannot applythe 1955Treaty
selectively and one-sidedly: the Treaty obligationsare mutual and reciprocal and govern Iran's
actions as well asthose of the United States. Irancannot invoke that instrument against the
16'Templeof Preah Vihear,Merits, I.C.J. Reports 1962,separate opinionof VicePresidentAlfaro, p.50.
See also Legaliq of Useof Force (Yugoslaviav. Germany),Requestfor the Indication of Provisional
Measures, II May 1999, CR/99/18,para. 1.6(GermanyarguingthatYugoslaviaitselfwasaccusedof
violatingGenocideConventionandhaduncleanhands,and had thusnotinvokedtheCourt'sprovisional
measuresjurisdiction ingoodfaitli).United Stateswhile claimingthat it doesnot apply to the series of related illegalIranian actions.
Iran cannottherefore obtainreliefsinceit itself had "setan example inthe pa~t'~~".
'63Diversion of Waterpom theMeuse, Judgment, 1937,P. C.I.J., SerieA/B, No. 70,p. 25.
63 CHAPTERIII
THE COURTSHOULDDENY RELIEFTOIRANBECAUSETHE UNITEDSTATES
ACTIONSWERE TAKENIN SELF-DEFENSEAS A RESULTOF IRAN'S OWN
ILLEGAL CONDUCT
2.10 Iran's illegal attackson U.S. and other neutralshipping inthe Gulf, in which itused
its oil platforms, promptedthe United Statesto respondin self-defense againste oil
platforms. Iran persisted in its illegal attackswithfullknowledge thatit was acting in violation
of internationala^'^^.It should now be deniedreliefforthe necessary consequences ofits own
actions.
2.11 This Court has held that, even in instanceswhere aparty may have acted
wrongfülly, a victim of such actions may bebarredfromreceiving relkf where the wrongful
actions resulted fromthe victim's ownwrongfulconduct. In Gabcikovo-NagymarosProject, the
Court found that it could not "overlook that Czechoslovakiacommittedthe internationally
wrongful act of putting into operation Variant C as aresultofary'sown prior wrongfùl
~onduct~~~.I~n~other words, "Hungary,by its ownconduct,had prejudicedits right to terminate
theTreat~'~~."
2.12 To supportitsholding in Gabcikovo-NagymarosProject that Hungary shouldbe
'6SeeNonvayCable,Exhibit198.
16Gabcikovo-Nagymaros Project,Judgment,I.C.J. Report1997, p67, para. 110.
'"6bid.denied relief for the consequences of its own actions, the Court relied on the Permanent Court's
holding in Factory at Chorzdw, quoting the following:
"It is, moreover, a principle generally accepted in the jurisprudence of international
arbitration, as well as by municipal courts, that one Party cannot avail himself of the fact
that the other has not fulfilled some obligation orhas not had recourse to some means of
redress, if the former Party has, by some illegal act, prevented the latter fiom fulfilling the
obligation in question, or from having recourse to the tribunal which would have been
open, to him"j7."
Both Gabcikovo-Nagymaros Project and Factory ut Chorzdw demonstrate that international law
will not permit one party to object to actions which were undertaken in direct response to its own
2.13 Inhis dissent inthe Nicaragua case, Judge Schwebel argued that Nicaragua's illegal
16'Factoiy at Chorzbw,Jurisdiction, JudgmentNo. 8,1927,P.C.I.J., Series A, No. 9, p. 31. Contrary to
Iran's assertionsin its Reply,the InternationalLaw Commission's Draft Articles on StateResponsibility
already subsumethis Factoiy at Chorzbwprinciple: exceptioinadimplenticontractus. According to the
Special Rapporteur, it is open to the Commissionto take the view that this principle- "recognizedby a
respectable body of international authorityand opinion" - is "sufficientlycovered" by article 38 adopted
on first reading. Third report on Stateresponsibility,UnitedNations Document A/CN.4/507/Add.3,
paras. 365-366. (This article 38 (article33 in the second readingtext) States: "The applicable rules of
international law shall continue to governthe legalconsequencesof an internationally wrongful act of a
State not set out in the provisions ofliis Part." UnitedNations Document A/51/10, p. 139(first reading
draft); United Nations Document A/55/10,p. 132(second readingdraft).) In any case, Gabcikovo-
Nagymaros Project demonstrates the continuingapplicability ofthe principle.
While severaljudges who dissentedfrom, as well as someof those who concurred in,the Court's
opinion expressed disagreement withthe Court's factual conclusionon the issue of causation, none
disagreed with the principle expressed. See,e.g., Gabcikovo-NagymarosProject, Judgment ,I.C.J.
Reports 1997, separate opinion of.JudgeBedjaoui, p. 134,para. 5 1;separate opinion ofJudge Koroma,
p. 151- 152(quotingextensively from Judge Hudson's separateopinion in the Meuse case); dissenting
opinion ofJudge Ranjeva, p. 170(questionwaswhether absent Hungary's first act of unlawfulness,
subsequentwrongs would have occurred);dissenting opinion ofJudge Fleischhauer, p. 212(general rule
not in doubt, merely applicationto case).conduct should have barred it from complaining about corresponding illegalities, "especially
because, if these were illegalities, they were consequential on or were embarked upon in order to
counter Nicaragua's own illegalit~'~~..." The Court did not need to address this principle in
Nicaragua because it concluded that the factual predicate for its application was not present170 .
2.14 Here, Iran attacked U.S. and other neutral shipping in the Gulf, thereby breaching
the 1955 Treaty. In direct response, the United States took actions in self-defense against the oil
platforms. Were it not for Iran's illegal attacks, the United Stateswould not have taken the
actions of which Iran corn plain^'^^.
'69Nicaragua,Merits, Judgment, I.C.J.Reports 1986,dissentingopinionof JudgeSchwebel, para. 394.
See also G. Fitzmaurice, "TheGeneral Principles of InternationalLaw," 92CollectedCourses,Academy
of InternationalLaw, The Hague p. 119(1957-11)("a Statewhich isguilty of illegalconduct may be
deprived of the necessary locusstandi injudicio for complainingof corresponding illegalities on the part
of other States,especially ifthese ...were provokedby it").
"O Parties havemade similar arguments before this Court. SeeLegality of Useof Force (Yugoslaviav.
Netherlands),Requestfor theIndication of ProvisionalMeasures, 11May 1999,CW99120,pp. 9-10
(Netherlandsarguing that the Court should deny Yugoslavia's requestfor the indicationof provisional
measures becauseYugoslavia's criminal conduct madeNATO's military operationsnecessary); Legality
of Useof Force (Yugoslavia v. Canada),Requestfor theIndication ofProvisionalMeasures, 10May
1999,UnitedNations Document CW99116,para. 39 (Canadaarguingthat "[a]party should not be granted
relief bythe Court if its need for such relief is the consequenceof its own graveand systematic breaches
of internationallaw"); Legality of Useof Force (Yugoslaviav. Portugal),Requestfor the Indication of
ProvisionalMeasures, 11May 1999, UnitedNations DocumentCRI99121,para. 3.1.4 (Portugal arguing
that "facts that are at the origin of the request for Provisionalmeasures have beencaused by the illicit
conduct" ofYugoslavia and therefore Yugoslavia's requestfor provisional measures is "not legitimate").
"' Iran'sclaimthat "the 'clean hands' conceptcannotper se be considered and invoked as a
'circumstanceprecluding wrongfulness"' (Reply,para. 8.19) not only is incorrect,but it also contravenes
Iran'sown practice before internationaltribunals. In fact, Iran has relied on the clean hands doctrineto
defend itself against claims of wrongfulness. In Mohtadiv.Iran, for example, Iran "raise[d] the
international lawdoctrines of estoppel, clean hands and abuse of rightsas reasons why the claim should
be dismissed ... ." Mohtadi v.Islamic Republic of Iran, (award 573-271-3), (1997), para. 34. And in
Karubian v. Iran, "Respondent argue[d] .. .by principlesof clean hands, estoppel,good faith and abuseof rights which operate in international law." Karubian v.IslamicRepublic of Iran, (award 569-419-2),
(1996), para. 148. Thatthe Tribunal decided these particularcaseson other groundsdoes not detract
from the fact that Iran invokedthe clean hands doctrineas a defensebefore an internationaltribunal.
Iran's assertions regardingthe unclean handsof the United Statesare entirelywithout merit. In
the concluding paragraphs of its discussion of the clean handsdoctrine, Iran requeststhe Court to declare
that the United States does not have "clean hands" inthe presentcase and "thereforeisprecluded from
Iiavinglocus standi injudicio both on its defence and on its counterclaim". Reply, paras. 8.33-34.
Insofar as this assertion would apply to prevent the Courtfromentertaining theUnited Statesdefense, it
appearsto state thejurisprudentially novel theory that the Courtcannot "entertain"thedefense of a state
accused of a wrongful act. Not surprisingly, no authority iscitedfor this proposition.To the extent that
Iran makes this assertion to preventthe Court from entertainingthe counter-claim, Iran does not begin to
make a case that the United Statescommitted any illegalconduct. Through its referenceto U.S. failure to
comply with its bilateral obligations under the 1955Treaty,Iran appearsto be trying tomake the
argument that the clean hands doctrine would barthe UnitedStatesfrom bringinga claim with respect to
Iran's wrongful conduct because of actions it took subsequentand in responseto suchconduct. No
authority is cited forthis proposition either.Finally, it is necessaryto addressIran'scontention that "the
filing by the United States - andthe provisional acceptancebythe Court of a counter-claimfounded on
the same facts as those which are adduced to supportthe 'clean hands'defence,resultsinthe legal
irrelevanceof that defence." Reply, para. 8.26. No authority iscited for this proposition,with the
exception of a misplaced reference to Judge Anzilotti's dissenting opinioninDiversion of Waterfiom the
Meuse,which does not addressthe "legal irrelevance"of the clean hands defensein sucha circumstance.
Reply, note 31. PARTIII
THEUNITED STATESDIDNOTVIOLATEARTICLE X(l) OFTHE 1955
TREATYBECAUSETHEATTACKSON THE PLATFORMSDID NOT
AFFECT."COMMERCE"THATWAS"BETWEENTHE TERRITORIES"OF
IRANAND THE UNITED STATES
INTRODUCTION
3.01 Iran's soleremainingclaim againstthe United Statesrests on Article X, paragraph
1,of the 1955Treaty. Articleparagraph 1,states,in its entirety, that:
"Between the territoriesof theHigh ContractingParties there shall be freedom of
commerce and navigation."
3.02 Inorder for Iranto sustainits burdenofproving that the United States violated
Article X, paragraph 1,Iran mustinitiallyproveto thesatisfaction ofthis Court two central
points. First, Iran mustprovethat the extractionofil atthe three oil platforms constituted
"commerce" within the meaningof ArticleX,paragraph 1. As discussed below, the term
"commerce" in this provisi-when readin the contextof the remainder of Article X and ofthe
1955Treaty as a whole, and in light ofits negotiating-is directed atregulation of
maritime commerce,not commercein a generalsense. These platforms did not serve as ports
nor were they othenvise engagedin maritimecommerce. Further, even if the Court were to
consider the meaning of "commerce"in a generalsense,that term does not encompassthe
extraction of crudeoil. Second,even ifthe Courtwereto concludethat such extraction of crude
oil constituted "commerce"withinthe meaningof ArticleX, paragraph 1,Iran must prove that
68this commerce was "betweenthe territories of the two High Contracting Parties." As discussed
below,at the times relevant to this case,theseplatforms were not engagedin commerce between
the territories of the Parties,because, in onecase,the affected platform was not in operation at
the time of the U.S. action against it, and,inthe other,the U.S. embargo precluded any
production from the affected platformsfrom beingexportedto the United States. Consequently,
Iran cannot sustain its burden of'establishingthat the United States hindered "commerce" that
was "between" Iran andthe United States'72.
3.03 This Court's consideration ofthe scopeof ArticleX, paragraph 1,formed a
substantial part of its 1996Judgment. NotwithstandingIran's efforts to arguethat the Court has
172Iran nowhas the burden of producing sufficientevidenceto prove that the U.S. attacks on the
platforms actually impeded commerce or freedomof commercebetween Iranand the United States,in
accordancewith the well-known maxim uctoriincumbitonusprobandi (the burden of proof rests onthe
party advancing a proposition) SeeNicaragua, Jurisdictionand Admissibility,Judgment,I.C.J. Reports
1984,p. 41, para. 101("Ultimately, .. it isthe litigantseekingto establish a factwho bearsthe burdenof
proving it ....");Shabtai Rosenne, TheLaw andPractice of theInternationalCourt, 1920-1996, Volume
III,p. 1083(3d ed. 1997)("Generally, inapplicationof the principleactori incumbitprobatio the Court
will formally require the party putting forward a claimto establish the elements of fact and of lawon
whichthe decision in its favour might be given.");Dunvard V. Sandifer,Evidence BeforeInternational
Tribunals,p.127(rev. ed. 1975)("Thebroad basicrule of burden of proof adopted, in general, by
internationaltribunals resembles the civil law ruleand may besimply stated:that the burden of proof
rests upon himwho asserts the affirmative of a propositionthat if not substantiatedwill result in a
decision adverse to his contention. Thisburden may rest onthe defendant, if there be a defendant, equally
with the plaintiff, asthe former may incurthe burdenof substantiatingany proposition he asserts in
answerto the allegations of the plaintiff..");MojtabaKazazi,BurdenofProofandRelated Issues,pp. 29-
30,75-95,369 (1996) (surveyingP.C.I.J. and1.C.Jjurisprudence to findthat the Court generally requires
the party claiming a fact to prove it,andothenvise decidingto the detriment of the party on that issue;
concludingthat this "is a principle which is generally recognizedand accepted indifferent legal systems
and in international law").conclusively determined that theU.S. actions constituteda violationof Article X,paragraph 1,
however, thatpoint remains undecidedby the Court,unprovenby Iran, and unsustainableas a
matter of lawand fact. This Part firstaddresses whythe Court's 1996Judgmentis not
determinative of whether Iran's extractionof oil attheseplatformsconstitutes "commerce"
within the meaning of Article X, paragraph 1,andthenproceedsto addressthe proper
interpretation of "commerce"and "betweenthe territories"asappliedto the facts of this case.
Lastly it concludesthat, whateverthe proper interpretationof ArticleX, paragraph 1,Iran hasnot
and cannot establishfacts sufficientto prove that U.S.actionsviolated ArticleX,paragraph 1. CHAPTER1
THE COURT'S1996 JUDGMENT DID NOTDECIDEWHETHERTHEEXTRACTION
OF CRUDEOIL AT THEIRANIANPLATFORMSCONSTITUTES "COMMERCE"
WITHINTHEMEANING OFTHE 1955TREATY
3.04 The Court found inits 1996Judgmentthat:
"thereexists between theParties a disputeasto the interpretation andthe application of
ArticleX, paragraph 1,ofthe Treaty of 1955;thatthis dispute falls withinthe scopeof
the compromissory clausein Article XXI,paragraph 2, of the Treaty; and that as a
consequencethe Court hasjurisdiction to entertainthisdi~pute"~."
3.05 Iran seeksto argue that this Court's considerationofthe scopeof Article X,
paragraph 1,in its 1996Judgment conclusively determinedthat the extractionof cmde oil at the
platforms constitutes "commerce"within themeaningof Article X, paragraph 1.Indeed, Iran
apparently wishes to rely on theCourt's Judgment toconstructa broad interpretationof
"commerce"under Article X, paragraph 1,onethat encompassesal1Iranianeconomic activities
of any kind, however attenuated and unproven the connectionof the activity may be to foreign
commerce, letalone to commerce with theUnited States. The Court's Judgment does not lend
itself, however,to such distortion. The Court satisfieditselfthat, for purposes of deterrnining its
jurisdiction, there was avalid legal and factual disputebetweenthe Parties overthe interpretation
ofArticle X,paragraph 1. The Court's Judgmentmakesclear that it did not decide that the U.S.
'73Case Concerning Oil Platforms (IslamicRepublic ofv.UnitedStates ofdmerica) (hereinafter
"OilPlatforms"), Preliminary Objection,JudgmentC.J.Reports 1996para.53.actions againstthe oil platforms actuallyimpeded freedom of commercebetween the territories
of the Parties. Instead,the Court decidedonly that the U.S. actionswere "capableof having" an
"adverse effect"upon the "freedomof commerce ... guaranteedby ArticleX,paragraph
3.06 With full pleadings by the Partieson the legal and factualissues givingrise to the
dispute now before it, the Court is in a position to consider onthe meritsthe interpretation of
"commerce"in Article X,paragraph 1. As will be discussedinthe next chapter,the Court should
read the term "commerce"in ArticleX, paragraph 1,as suggestedby its immediatecontext,to
mean maritimecommerce between theStates. Sincethe extractionof oil atthese platforms was
not a part of maritime commercebetweenthe two States,Iran's claimmust fail.
'74Ibid atpara.5 1. CHAPTERII
THE EXTRACTION OFCRUDEOIL ATTHEIRANIANPLATFORMSIS NOT
"COMMERCE" WITHIN THEMEANINGOF ARTICLEX(l) OFTHE 1955
TREATY
Section 1. The Term "Commerce"in ArticleX(l) Refers to"Maritime Commerce"
3.07 Like any treaty provision,the words of ArticleX,paragraph 1,must be interpreted
"in good faith in accordance with the ordinarymeaningto be givento the terms.. . in their
context and in light of [thetreatyobjectandpurpose"*". Theyare not to be read in isolation,
but in harmony withthe other provisionsof the treaty, andin a way that gives effectto the
treaty's broad goals. Both the immediatecontext of theterm "commerce" in Article X,andthe
broader context ofthe 1955Treatyas a wholemake clearthat itsordinary meaning, in thiscase,
must be understoodas maritim eommerce,and, perhaps, certainancillary activities integrally
related to such commerce.
3.08 A close reading of'the text of ArticleX shows that eachof its severalprovisions
relates to maritime affairs. ArticleXreads in full:
"1. Between the territories of the two High ContractingParties there shallbe freedomof
commerce and navigation.
'75Vienna Convention on the Law of Treaties, Art31, 1155UNTS 331. The Court has determined
that Articl31 ireflective of customary laSee,e.g.,Case ConcerningKasiliki/SedudIsland
(Botswana v.Namibia),Judgment, 13December 1999, I.C.J.Report1999, para. 18. 2. Vesselsunder the flag of either High ContractingParty,and carryingthe papers
requiredby its law in proof of nationality, shallbe deemed to be vesselsof that High
Contracting Party both onthe high seasandwithinthe ports, places andwaters of the
otherHigh Contracting Party.
3.Vessels of either High ContractingPartyshallhave liberty,on equalterrns with vessels
ofthe other High Contracting Partyand on equalterms with vesselsof any third country,
tocomewith their cargoesto al1ports, places andwaters of suchotherHigh Contracting
Partyopen to foreign commerceand navigation. Suchvessels andcargoes shall in al1
respectsbe accorded national treatmentandmost-favored-nationtreatmentwithin the
ports,places and watersof such otherHigh Contracting Party;but each High Contracting
Partymay reserve exclusive rightsandprivilegesto its own vesselswith respectto the
coastingtrade, inlandnavigation and national fisheries.
4. Vessels of either High ContractingPartyshallbe accorded nationaltreatmentand
most-favored-nation treatmentby the otherHigh ContractingPartywith respect to the
rightto carry al1productsthat may be carriedby vesse1to or fromthe territories of such
otherHigh Contracting Party;and suchproducts shallbe accordedtreatment noless
favorable than that accorded like productscarriedin vessels of suchother High
ContractingParty, with respect to: (a) dutiesand charges of al1kinds, (b) the
administration of the customs, and (c)bounties,drawbacksand otherprivileges of this
nature.
5. Vessels of either High ContractingPartythat are in distress shallbe permitted to take
refugein the nearest port or haven of the other High Contracting Party, andshall receive
friendlytreatment andassistance.
6. Theterms "vessels",as used herein,meansal1types of vessels,whether privately
ownedor operated, or publicly ownedor operated;but this term doesnot, except with
referenceto paragraphs 2 and 5 of the presentArticle, include fishingvesselsor vessels
of war."
3.09 The full text ofArticle Xthus createsa detailed, inter-connectedsystem for non-
discriminatoryaccess to ports and for other commercialshipping matters. Itsvarious parts
combineto create the overall structure of the Article,and mustbe readin relationto one another. 3.10 Thus, for example, the formulation"commerceand navigation" used in paragraph1
is repeated in paragraph 3 inthe context of non-discriminatorytreatmentof vessels. It is clearin
the third paragraph thatthe reference is to maritimecorn~nerce'~~ I.t would be incongruousto
construe the words "commerce andnavigation"in paragraph 1in a manner that so exceeds their
plain scope in paragraph 3,in the absenceofany indicationthat a broader scope was intendedby
the Parties.
3.11 In its comprehensivenessand detail,ArticleXresembles otherarticles of the 1955
Treaty, which establish well-elaborated systemsofrulesto regulate particularareas of trade,
investment and economic relations. Nothing in the textof Article X, paragraph 1,or in the
remaining textof Article X in its entirety, supportsan interpretationof paragraph 1whichwould
establish it as a sweeping guaranteeby eachPartywith respectto any action that might impair
any aspectof the economic activity, real orpotential,of the other Party. To the contrary, the
Treaty's structure, detail and precision showthat,had the Parties intendedto create such a
guarantee, they would have pursued it farmoreexplicitly and in greaterdetail elsewhere in the
Treaty.
'76Inherseparateopinion in theCourt's Oil Platforms 1996Judgment, JudgeHigginsnotedthat:
"[Ilnthecontextofthe paragraphs thaf tollowin ArticleX itself,itdoesseemtomethat thecommerce
there referred tosmaritime commerce or -as intheOscar Chinn case - commerceintegralto, closely
associatedwitli,orancillaryto maritime commerce ..C.J.Reports 1996, para.40,p. 859, separate
opinion ofJudge Higgins. 3.12 It is also of relevancethat, as noted by the Court in its 1996J~dgme,thero
provisions ofthe 1955Treaty addressaspects of commerceotherthan those covered in Article X.
This reinforcesthe conclusion thatthe term "commerce"in ArticleX, paragraph 1,was intended
to be read inrelation to the restof Article X, but not as establishingarule of general application.
The 1955Treaty references "commerce"or "commercialactivities",for example, in Articles II
(entry and basic persona1rights),VI1(exchange controls),andXI (state trading). In each case,
the specific, detailed provisions setforth in these Articleswouldbe either unnecessary or
inconsistent withthe broad readingof Article X, paragraph 1,embracedby Iran. The treatment
of other commercial issues in separateprovisions throughoutthe 1955Treaty confirmsthat
Article X, paragraph 1,as intendedby the Parties to have anarrowermeaning, informed by the
remainder of Article.
B. THEHISTORY OFARTICLE X(1)REINFORCE ISSMARITIMC EHARACTER
3.13 The Parties plainlydiffer on the interpretationof Article X, paragraph1. To the
extent that this difference reflectsambiguity or obscurity of the paragraph,the Court may wish to
have recourse tothe preparatoryworkofthe 1955Treaty,as suggestedby the principle codified
in Article 32 of the Vienna Conventionon the Law of Treaties. Article32provides, in relevant
part, that:
"'Oil Platforms,Judgment,I.C.J.Report1996,paras4 1and42.
76 "Recoursemaybe had to supplementarymeansof interpretation, includingthe
preparatory workof the treaty and the circumstancesof its conclusion,in order to confirm
the meaning resulting from the applicationof article 3 117'... .IV
In this case,the history of the 1955Treaty andits negotiatingrecord demonstratethat ArticleX
was designedto consolidate al1of the Treaty'sprovisionson shipping into asingle article aimed
generallyatpreventing discriminatory treatment of vessels and~argoes'~~
3.14 Both Iran andthe Court have recognizedthat treaties of "friendship,commerce and
navigation" (hereinafter, "FCN") likethe 1955Treatycannotbe read in isolationi80.The 1955
Treatyis part of an extensive systemof U.S.bilateraltreaties designed, interalia, to promote and
protect certain economic activities.
3.15 Generally, these treaties containcommonlanguage, with only limited variationsas
requiredto address particular situations. Thus,negotiatinghistory and practiceunder one treaty
canbe criticalto properly interpretingand applyinganother. Accordingly, bothIran (in its oral
arguments) andthe Court have referred in thiscaseto the negotiating historyof other treaties in
construing the meaningof the 1955Treatyi8'.
17'Vienna Convention on the Law of Treaties, Article32, 1 155 UNTS31
'79See Charles H.Sullivan, DepartmentofStateStandardDra$ (AnalysisandBackground),Treaiyof
Friendship,Commerce andNavigation,p. 283 (hereinafter "SullivanStudy"), Exhibit 213.
''OSee,e.g.,Meinorial, paras. 3.27-3.28; OilPlatforms,Judgment,I.C.J.Reports 1996, para. 29. Iran's
numerous citations to the Court's judgment in theNicaraguacase, also signal its recognition that other
treaties of the typender consideration here are relevantto this case.
'''See,e.g,, Oil Platforms,PreliminaryObjection, 20 September 1996,CR196115 p.43, para. 8;I.C.J.
Reports 1996, p. 814, para.29. 3.16 A comprehensive studyofthe "modem" post-World War IIFCNtreaties (including
the 1955Treaty),prepared by one oftheir principal architectsand negotiators, explicitly
addresses themaritime characterofArticle X. Charles Sullivanfor many years headedthe U.S.
State Departmentoffice thatnegotiatedsuch treaties. In hisanalysis of the standardform for
these treaties,Mr. Sullivan explainedthe standard navigationarticle (from which ArticleX,
paragraph 1,doesnot deviate):
"Thecrucial elementinArticleXIX [renumberedas Article X in the 1955Treaty
withIran]is that it relatesto the treatment of vessels andto the treatment of their
cargoes. It is not concemedwiththe treatment ofthe enterprises whichownthe
vessels andthe cargoes. Thattreatmentis stipulatedinotherprovisions ofthe
treaty. ...
ArticleXIXhas two essentialobjectives. Oneisto prevent discriminationbased
on the vessel...
The othermajor objective isto prevent discriminationbased upon cargo and made
effectiveby cargo preferencela~s'~'...."
Yet the interpretationof the provisionhere sought by Iran wouldextendthe reach ofthe
provision preciselyto "thetreatment of enterpriseswhichownthe vessels and the cargoes"; in
this case, to an enterprise that ownedoil platforms, whichmay or may not have been in
operation. If inoperation, suchplatformswould havebeenengaged in the extraction ofcrude oil
from the seabedin circumstancesinwhich that crude oil,potentially,may ultimately have been
'"Sulliva Study,p.284 (emphasisadded),Exhibit213.
78cargo in maritime commerce. Thus Iran's interpretationis at a substantial distance beyondthe
treatment of vessels and their cargoesthat was intended forArticleX, paragraph 1.
3.17 The history ofthe 1955Treaty confirmsthat Paragraph 1dealswith navigation and
bears upon commercial activity onlyinsofaras it relates incidentally to navigation. A22June
1954,Departmentof Statecableproposing a Treaty of Friendship, Commerceand Navigation
with Iran describedthe draft Treatyas "essentiallyan adaptationof the standardprovisions" with
the inclusion of "such provisionsto meet special situationsinthat country [Iran]as may be
deemednecessary. These wouldprobably include a comprehensivenavigationarticle'83."This
"comprehensivenavigational article" wasthe provision that became ArticleX.
3.18 Another U.S. Department of Statecable,dated23July1954, was similar. It stated
that "inview ofthe present, andthe presumably greater,futureinterests of Iranas a maritime
state, it has beenthought appropriateto propose the navigationprovisions ofthe standard FCN
treatyIs4.. ." Thus, the text that became ArticleX clearlywas solely a "navigation"provision
that was included inthe 1955Treaty preciselybecauseof Iran'sthen-present and anticipated
future significanceas a maritime State.
3.19 As negotiations on the 1955Treaty progressed, discussionsonArticle X emphasized
the desirabilityof non-discriminatorytreatment of shipping. Thus, the U.S.Department of State
Ig3Cable from Secretary Dullesto American EmbassyTehran, 22 June 1954, p.3,Exhibit 215.
Ig4Cable from State Departmentto American EmbassyTehran, 23 July 1954,EnclosedMemorandum,
p.3.,Exhibit2 16.in November 1954advocated inclusion of ArticleX on the ground that "[the]interests [of]
international commerce [are]served best by [a]policy permitting free competition [for]vessels
[ofJal1countries for carriage [of]commercialcarg~es"'~~.
3.20 Similarly, the U.S. Senatereflected the generalU. S. understandingof Article X as
regulating maritime matters when it gave advice and consent to ratificationofthe 1955Treaty.
The Senate Report discussingthe "CommercialTreaties with Iran, Nicaragua, andthe
Netherlands," describes Article X as bearing upon navigation: "ArticleXdetails the rights of
vessels flying the flag of eitherparty inthe ports of the other and ingeneralprovides national and
most-favored-nation treatment, exceptfor coastwise, inland, and fishingtrafficlS6."
3.21With respect to Article X, paragraph1,Mr.Sullivan's descriptionof the standard
FCN treaty maritime article is definitive:
"Thisprovision isinthe nature ofa declaration of principle ratherthan having a
definitelegal rule. It is consideredas having special relevancetoseabornetraffic.
It is intraditional terminology, probably directed against mercantilist restrictions
of the kind commonplace inthe Nineteenth Cent~ry'~~."
Is5CablefromDepartmentofState toAmerican Embassy Tehran, 3November1954,p.2.,Exhibit21 7.
Is6SenateReport,84thCong.,2dSess., "CommercialTreatie sithIran, Nicaraguaa,ndthe Netherlands,"
9 July 1956,p. 3,Exhibit218.
Is7Sulliva Study,p.287,Exhibit21 3.In its Counter-Memorial, theUnitedStates emphasizedthe declaratory natureofArticle X,
paragraph 1Ig8;it maintains its viewson this subject.
3.22 Worldwide practiceunderthe FCN treaties confirmsthe maritime scopeof Article
X. In 1981,the U.S. Department of State conducted astudyof specific incidentsinvolving the
interpretationand application ofU.S. FCN treatiessinceWorld WarIIIg9.That studyfound
thirteen cases involving disputes concerningprovisions comparableto Article X of the Iran-U.S.
Amity Treaty. None raised claimsoutside the sphereof navigation and shippingIg0.The
experienceofthe Iran-U.S. Claims Tribunal suggeststhe sameconclusion, in thatnone ofthe
hundredsof cases filed there involvingbreachof contractor loss of commercial propertyhas
been decidedon the basis of ArticleX,paragraph 1,of the 1955Treaty.
3.23 Thus, both textual andhistorical analysis of ArticleX, paragraph 1showthat the
tenn "commerce"asused thereinhas a limited scope,relatedto the maritime characterof the
article as a whole. Itdoes not, andwas never intendedto, expandthe scope of theprovision to
make it a comprehensiveregimeforthe promotion andprotectionof every formof economic
la8Counter-Memorial, paras. 2.06-2.15.See also Draft Treaty of Friendship, Commerce and Navigation
Between the United States of America and the Republicof Portugal (annotated version), May1949,
Annotation atArticle XIX(2), Exhibit2 14.
Ia9Ronny E.Jones, State DepartmentPractices UnderUS. Treatiesof Friendship, Commerce,and
Navigation, August 1981, pp. 172-188,Exhibit 219. A copy of this document is being deposited in the
Registry.
I9OIbid. The disputes involved, interalia,flag requirements for shipping in certain sea lanes, restrictions
limiting a State's commercial shippingto shipsflying that State's flag, and allegations thatone Statewas
granting priority treatment to ships of its former colonial power.activity that might exist in the territory of each Party. Iran'sfailure to demonstrateany
interference by the United Stateswith maritime commercebetween Iran andthe United States is
thus fatal to Iran'sclaim inthis proceeding.
Section 2. Even a Broad Interpretationof the Term "Commerce" WouldNot Sustain
Iran's Interpretation
3.24 Even if the Courtwere to concludeat the meritsstage that the term "commerce"
reaches a broader categoryofactivitiesthan the maritimecommerce theUnited States believes is
the appropriate scopeof the term asused in Article X, paragraph 1,the termdoes not possess the
scope that Iran seeksto give it. Iran argues thatthe "juridical"definition of "commerce" includes
"not only the functions of saleand purchase, but alsoanyancillary activitiesthat are intrinsically
linked to commerce, inparticular the activitiesofproduction, transport, storage or improvement
of the raw rn~terial'~'"I.ran's authority in support of this effort tobroadendramaticallythe
scopeof Article X,paragraph 1,is, however, unpersuasive.
3.25 To make its case,Iran offers quotations froma few carehlly selected cases from
U.S.jurisprudence, as well as a relatively smalluniverseof doctrinal authoritieswho appear, at
least fiom the brief quotations offered without contextby Iran, to espouse a broad definition of
the term "commerce". Iranthus seeksto persuade the Courtthat "commerce,"as it is used in
Article X, paragraph 1of the 1955Treaty, was intendedto coveroil extractionactivitiesseveral
19'Reply,para. 6.58.steps removedfromthe maritime commercethat the United Statesand Iransought to promote
through this provision. In addition,by casually equating theterm "commerce"with other terms,
such as "industry"and "trade",andthen citing to the Court's referenceto the Oscar Chinn
case'92,Iranseeks to constrainthe Court's further considerationof this issue, suggesting thatthe
Court's statementsabout possible interpretationsof the term amountedto an"expressruling on
thispoint'93".Iran's approach isin error. The authoritiesthat Iran citesdo not supportthe
conclusions for whichit argues.
A.THEOSCAR CHINN CASE
3.26 Iran relies in part on the Permanent Court of InternationalJustice's Judgment in the
OscarChinn case'94,a case also referredto by this Court in its 1996Judgment19'.The language
quoted by Iran and the Court speaksof "freedomof trade," and links it to a right "toengagein
any commercialactivity, [including]industry,and in particularthe transportbusiness196".The
context in whichthe Permanent Courtmadethis statement,however,is criticalto understanding
its meaning. The Permanent Court itself acknowledged that the contextwas critical: it defined
Reply, paras. 6.28-6.31.
'93Reply, para. 6.30.
'94Reply, paras. 6.28 and 6.36.
'" Oil Platforms,Judgment, 1C.J Reports 1996,para. 48.
'96Ibid, citing the Oscar Chinn case, 1934P.C.I.J., SerA/B,No. 63, p. 65."freedom of trade, as established bythe C~nvention'~~"I.t did not delivera comprehensive
definition of "freedomof trade"applicable in al1circumstances.
3.27 The Convention of Saint-Germainof 10September 1919 (successor instrumentto
the General Act of Berlin of26February 1885andthe Act and DeclarationofBrusselsof 2 July
1890),at issue in Oscar Chinn,was more comprehensivethan the 1955Treaty,providing for
"complete commercial equality"betweenthe nationalsof the Parties andthoseof Members of
the League of Nations19'.Giventhis scope, the PermanentCourt took an expansiveview of the
concept of "freedom of trade," encompassing therightto "engage in anycommercial a~tivity'~~".
The 1955Treaty, and specificallyArticleX thereof,is significantly more modestin both its goals
and means.
3.28 Moreover, the Permanent Courtexpresslyacknowledged the significanceof fluvial
transport onthe Congo Riverto the accomplishmentof the overall objectivesofthe international
regime forthe Congo Basin: "inthe first place isto benoted the peculiar importanceof fluvial
transport forthe whole economicorganizationofthe col~ny*~~"T . he factualcontext of the
present case is not ana log ou^^^^.
19'OscarChinn case, 1934 P.C.I.J.,SeriesA/B,No.63,p. 84. (Emphasisadded).
19'Ibid.,p.79.
'99Ibid.,p. 84.
200Ibid.,p.78.
'O'In herseparateopinion in thepreliminaryobjection phase ofthis case,Judge Higginsnotedthat:"the
fluvial transportationindustrywasanintegralpart ofthetradeenvisaged under Article5 ofthe Saint- 3.29 Oscar Chinn is of only limitedrelevance, therefore, for the purpose of determining
the appropriate scope of ArticleX, paragraph 1, of the 1955 Treaty. Nothing in the Permanent
Court's decision supports the applicability ofthe Court's interpretationof the convention of
Saint - Germain in that case to the wholly distinct legal and factual context in this proceeding.
B. DEFINITIONS
3.30 Iran relies on definitionsfrom several sources in support of its attempt to expand the
meaning of "commerce", as used in Article X, paragraph 1. Even when taken out of its Treaty
context, however, the term does not possess, in general legal usage, the breadth attributed to it by
Iran.
3.31 As an initial matter, it should be observed that the listing of definitions in a variety
of languages, without any effortto provide c~ntext*~*and without any indication that such
definitions were relevant to the drafting of Article X, paragraph 1,(whichas shown above,
contained the identical text of the relevant provision of the modU.S. FCN treaties in use at the
Germain Conventionina waythatoil productionis notan integralpart of what was envisagedunder
ArticleX ofthe 1955TreatyofAmity,EconomicRelationsandConsular Rights between Iran andthe
UnitedStates." I.C.J. Reports 1996,p. 860,para.47, separate opinionofJudge Higgins.
'O2Thus Iranprovidesa lengthyquotationfrom BaronNolde'scourseatthe HagueAcademy,fromthe
chapterentitled "Les TarifsDouaniersConventionnels"butomitshisspecificdiscussionof FCNtreaties:
"Onremarque danscetraite ladisposition surla liberteducommerce:ledroitdes marchandsdeveniret
de sejournerdansle payset d'yamener leursmarchandises. Cette formuleconstituerajusqu'anosjours
labase fondamentale des touteslesconventionscommerciales." Nolde,B., "Droitet technique destraites
de commerce,"CollectedCoursesofthe HagueAcademyofInternationalLaw, Vol.3 (1924-II),pp.301-
02.time of the negotiation of the 1955Treaty),may be of limited value to the Court. It should also
be noted, however, that even the generalAnglo-Americanunderstandingof theterm "commerce"
presents a much more limited conceptof commercethan that suggested byIran. For example,
the 1951edition of Stroud'sJudicial Dictionary ofWordsand Phrases statesthat "Commerceis
traffick, trade, or merchandize, inbuyingand sellingof goods203".This definitionis inturn
consistent with a 1916precursor in Wharton'sLawLexicon:
"Commerce. ..,the intercourseof nations in eachother's produceandmanufactures, in
which the superfluities of one are given forthose of another, and thenre-exchanged with
other nations formutualwants. Commercerelates toOurdealingswithforeign nations,
colonies, etc.; trade,tomutualdealings athome204."
3.32 Even some of the definitions citedby Iran do not extend so faras to bringwithin
their scopethe actZvitiesthat Iran hassuggestedare includedwithin the concept. Thus, for
example, Iran citesthe definitions of "commerce"inBlack S Law Dictionaryand in West's
Guide toAmerican Law205b ,oth of whichbegin byreferringto the exchangeof goods, products,
and persona1property, but includereferencesto the transportation of goodsandthe so-called
"instrumentalities" of commerce. Neither, however, supportsthe propositionthat Iran must
establish inorder for it to prevailin its claim with respectto Article X, paragraph : that
203F.Stroud, Stroud SJudicial Dictionaryof WordsandPhrases, 3rded. 1951,Exhibit220.
204E.A.Wurtzburg, Wharton S Law Lexicon, 12thed. 116, Exhibit22 1.
205See Reply,para. 6.36,fn 52,citingtheCourt'sreferenceto Black's Law Dictionary, 1990 ed.,p. 269.
Iran originallycitedthisprovisioninits Mernorial.See alsoReply, para.6.26,citing TheGuide to
American Law, Everyone SLegal Encyclopedia, Vol.3, p.54."commerce" inthe context of that provision includes the potential extraction ofcrude oil from
the seabed by the nationalsof one Party withinthe territory of that Party.
C. UNITED STATES "COMMERC CELAUSEJ"URISPRUDENCE
3.33 Iran's lengthy discussionof United States "Commerce Clause"jurisprudenceis
unpersuasive, both as amatterof treaty interpretation,as to which it is largelyirrelevant,and as a
matter of U. S. constitutional law,asto whichit is incomplete and misleading. First, standard
rules of treaty interpretationdo not cal1for resorting to oneParty's specializedconstitutional
doctrines to interpret the languageof a treaty, particularly where,as here, thereisno evidence
that negotiators sought toimport such doctrines intothe treaty. Second,decisionsby the U.S.
Supreme Court on whether Congress has authorityunderthe U. S. Constitutionto regulate
certain activities in the United Stateson the grounds that theylve commerceamong our
several states, as distinct fromsuchauthority resting exclusively withOurstate governrnents,
have no direct bearingon the issueof internationalcommerce between the UnitedStates and
another State, such as Iran206.Finally, with respectto U.S. constitutionallawin this area, it must
be observed that such law has evolved overtime and continues to evolve, and, werethis Court to
206Thus, even in the Daniel Bal1case cited by Iran,the critical question was notwhat constituted
"commercel'pevse, but rather whetherthe vesse1concerned was "engagedin commercebetween the
States" (emphasis added). It is inthis connection that thepreme Court reached itsconclusion that
"whenever a commodity hasbegunto move as an article of tradepom oneState to another, commerce in
that commodity betweenthe States has commenced." Reply, para.23,citing (with different emphasis)
TheDaniel Bull, 77 U.S(10Wall.)p. 557,19L.Ed.p. 999 (1871).conclude, as Iranapparently suggests,that ArticleX, paragraph 1,is to be interpretedwith
reference to this U.S. constitutional doctrine,it would leadto confusion and indeterminacywith
respect to the meaning of the provision.
3.34 In any event, and asIranitself has recognized,U.S. "Commerce Clause"
jurisprudence simply cannot be construedto include oil extraction activitiessuchas those
engaged inby the oil platforms withinthe meaningof the term "commerce". TheE. C. Knight
case cited by Iran207- which, itmust benoted, ruled sugar rejning (not to mentionthe prior
stage activitiesof sugar cultivation or harvesting) outsidethe scope of the Commerce Clause -
itself indicatesthe level of the U.S. Supreme Court's resistanceto such a broad interpretation.
3.35 In addition, a number ofcases concerningthe oil andcoal miningsectorsin
particular only serve to reaffirmthe U.S.Supreme Court's distinction betweenproductionand
commerce. In Champlin Rejning Co. v.Corporation Commission of for example,
the U.S. SupremeCourt foundthat oil regulations adoptedby the state of Oklahomadid not
violate the Commerce Clause becausethey applied "onlyto productionand not tosales or
transportation of crude oil or itsproducts209."The regulationsprohibited anypetroleum
production processes that created waste. The Courtheld that: "Such productionis essentially a
'O7Reply, para.6.23.
'O8ChamplinRefiningCo.v.CorporationCommissionof Oklahoma, 286 U.S. 210(1932), Exhibit 222.
'O9Ibid,p.235.mining operation,and thereforeisnot a part of interstate commerce,even thoughthe product
obtained is intendedto be and in factis immediately shippedinsuch commerce210".
3. 36 In a second miningcase,the U.S. SupremeCourtheld that production and
commerce are "two distinctand separateactivities," even if the product willbecomepart of
interstate commerce,and, secondlyandmore specifically,that extraction of amineral (coal) was
not part of commerce2".
Section 3. "Freedomof Commerce"Within the Meaningof the 1955Treaty alsoDoes not
Include theOilExtraction Activities of the Platforms
3.37 It is evident that Iran's attempt to expand thereachof Article X,paragraph 1,by
interpreting the broad statement that "thereshallbe freedomof commerce" into a sweeping
guarantee by each Party of the other Party'sfull range ofeconomic activity withinits own
territory cannotbe sustained. Suchan interpretationwouldnecessarily constitute an undertaking
by each Party torefrain fromal1actionsthat could createanytype of economic impedimenton
'IoIbid.
Carter V.Carter Coal Co.,298 U.S. pp. 303-04 (1936), Exhibit223, ("Mining bringsthe subject-
matter of commerce intoexistence. Commerce disposes of it."). See also NorthernNaturalGusCo. v.
State Corp. CommissionofKansas,372 U.S. p. 94 (1963), Exhibit224, (noting that "our cases have
consistently recognized asignificant distinction, which bears directly uponthe constitutional
consequences, between conservation measuresaimed directly at interstatepurchasers and wholesales for
resale, andthose aimed atproducers andproduction"(emphasisadded)).the other Party. Iran has conceded,however,thatactions such as import dutiesor port fees2I2are
accepted elementsof international practice. Moreover,a sweeping interpretationof "freedom of
commerce" couldeven be read tosuggest notonlyan obligation to refrainfromal1actions that
might have a negative consequenceon the economyof the other Party,butto createan
affirmative requirementto removeor remedy obstacles - such as third party attackson ships
carrying goods between the UnitedStates and Iran - that might interferewith trade between the
Parties, or even an affirmative dutyto take actionsinthe territory of the other Partythat would
ultimately promotethe developmentof trade betweenthe Parties.
3.38 Iran's reliance on theCourt's statementsinthe Nicaragua case is equally ill-
founded. As this Court is aware,Article XIX,paragraph 1,of the 1956United States-Nicaragua
Treaty of Friendship, Commerce,andNavigation (hereinafter "NicaraguaTreaty")is
substantively identicalto ArticleX, paragraph 1,ofthe 1955Treaty213.Nicaragua argued in that
case that the United States had violated ArticleXIXofthe U.S.-NicaraguaTreatyby a variety of
actions: mining and attacking Nicaraguan portsandport installations; attackingfacilities
associated withthose ports andthe fueling of vessels that sailedto and fromthose ports; and
"' Reply, paras.6.11-6.13.
'13ArticlXIX, paragraph 1,oftheNicaraguaTreatystates: "Between theterritoriesofthetwoPartiesthere
shallbefreedomofcommerceandnavigation."TreatyofFriendship,Commerce and Navigation,signed
21January 1956e ,nteredinto force24 May1958,367 UNTS 3.imposing the embargo2I4.The Courtfoundthe United Statesin violation ofthe "commerce and
navigation" provision only with respectto the mining of the portsand the embargo, treatingthe
other acts as violations of customary international lawn5. The criticalpoint forthis purpose is
that the Court appears to have limited its findings with respect to the "commerceand navigation"
provision to those actions related to maritime commerce: forexarnple,the attacks on ports, port
facilities, and the embargo. In this case,nosuch actions are at issue.
3.39 Iran also relies, inthis regard,on the absenceof a specificfinding by the Court that
"the oil in the terminal that was attackedwas intended to reach directlythe territory ofthe United
States"or that "the shipsthat were sunkor that avoided stopping at mined Nicaraguanports were
carrying on commerce betweenthe territoriesof the two Partiesat that precise But
Iran reads fartoo much into the Court's silence.
3.40 First, the Courtin the Nicaragua case did notrequire specificproof that trade
between the United StatesandNicaraguahad been affectedby U.S. actions because, at the time
of concern to the Court, there wasno dispute that suchtrade wastaking place - particularly inthe
oil secto$I7. In addition, itmust be recalledthat, inNicaragua, there was no questionthat
'14Nicaragua,Merits,Judgrnent, 1.C.J.Reports 1986, paras.278-279.
" Ibid.
'16Reply,para.6.50.
'17Counter-Mernorialp ,aras.2.28-2.32."fieedom of navigation" betweenthe two Stateshad been impeded, in that the Court found that
the actions ofthe United Statesinvolved attackson and the rnining of port facilitiesthat
precluded such navigation betweenthe States. Thusthe Court, which groupedtogether by cross-
reference rnanyofthe U.S. actionsin findingthe violation ofthe comparableprovision218w , as
not -as it would have to be in orderto find a violation inthis case- forced to relyon an
overbroad interpretation of the term "commerce." By contrast, as the United Statesdemonstrates
below, in thiscase there was no commerce betweenthe UnitedStates and Iran inoil fiom these
platforms inthe relevant period,and the platformswerenot in any sense engagedin or
supporting commercial navigation. Consequently,the Court inthis case must specifically
determine that "commerce" existed "betweenthe territories" of Iran and theUnited States within
the meaning of Article X, paragraph 1.
218Nicaragua,Merits, Judgment,1C.J Reports 1986,paras. 292(7), (11).
92 CHAPTERIII
DURINGTHERELEVANT PERIOD,IRANIANOIL FROM THE
PLATFORMSWAS NOT PART OF "COMMERCE" "BETWEENTHE
TERRITORIES" OF IRAN ANDTHE UNITED STATES,AS REQUIRED
UNDERARTICLEX(l) OF THE 1955TREATY
3.41 Whateverthe interpretationof Article X, paragr1,of the 1955Treaty as
discussed in Chapter IIove,Iran has not established any of the factsto support a conclusion
that a violation of that provision, attributabletothe United States,has occurred. For the reasons
discussed below, theUnited States submits that Iran not established anysuch facts and that it
cannot do so.
Section 1.TheOilPlatforms Were Not Engaged in MaritimeCommerce
3.42 Iran doesnot even attempt to argue thatthe activity ofextractingcrude oil fiom the
seabed constitutes maritime commerce. Thisis appropriate, given that the platforms were not
ships, nor were they ports. Moreover,as Iran itself admits, the platforms were not designed to
accommodate tankers for thepurpose of loadingcrude oil for export2I9.Thus, Iran appears to
have conceded that if, as the United Statescontends,the term "commerce"as it is used in Article
X, paragraph 1,is properlyunderstood to mean maritime commerce, and, perhaps, certain
21See Reply, para.6.61.ancillary activities integrally relatedto suchcommerce,the attacks on the oil platformsdo not
come withinthe reach of the 1955Treaty.
Section2. The Oil Platforms WereNot Engaged in "Commerce"Even Under an
Interpretation of the Term Not Limitedto Maritime Commerce
3.43 Even ifthe term "commerce"is consideredoutside the context of its placementin
the article onmaritime commerce, Iran's activitieswith respectto the oil platformsdo not
provide a basis on which to concludethat the platforms were engaged in commercewithinthe
meaning ofthe 1955Treaty.
3.44 As Iran acknowledges,the oil extractedby its offshore platforms wasnot in a form
capable of being exported whenit came ont0 the platfonn~~*~R . ather, gas, hydrogensulfide,and
water had to beseparated fromthe oilbefore it couldbe safely exported. Prior to this separation,
the oil wasunstable and highly flammable,andthus extremely dangerous toload ont0 tankers for
e~port~~'.There is no active marketfor exportof, or trade in, oil that containsthe levelsof gas,
220See Reply,paras. 3.7-3.10.
22'Statement ofEdward O. Price,para. 14,Exhibit212.hydrogen sulfide,and water that the oilproducedby Iran's platforms containedpriorto the
completion ofthe separationprocess.
3.45 Iran's Replymakesclearthat the oil andgas separation process occurredin two
stages: one stage occurred on the platforms themselves;the second stage occurredon Lavan or
Sirri Island after the oil had beentransportedthereby subsea pipeline. Accordingto Iran,
"Afierthe crudeoil produced fromthe ReshadatJResalat[Rostam] fields and Salman
[Sassan], whichhad undergonean initial separation processon the platforms, had been
pumped by underseapipe-line toLavanIsland,further processing took place in order to
separate more gas and water. ... A similarprocess occurredfor crudeoil produced on the
Nasr [Sirri]platform, althoughin that casecrude oil went via Sirri Island222."
3.46 It is thus clearthat the process of producingcrude oil capable of exportwas not
completed on Iran's oil platforms,but insteadwascompleted only afier secondary separation
took place on Lavan and SirriIslands. Damageto Iran'soil platforms, accordingly, did not
affect a product that was itself in commerce.
3.47 It must alsobe consideredwithrespectto the platforms' role as "production"
facilities, thatas Iran has admitted22- of those platforms against which the UnitedStates took
military actions, only Sirriappearsto have beenengagedin "production"atthe time of the U.S.
actions. The other platformswereundergoingrepairsand were not engagedin "production" at
the time ofthe U.S. actions.
'*'Ibid ,ara.3.10.
223Reply, paras.3.13 and3.14. 3.48 With respect to the Sirriplatform,which apparentlyhad not been darnagedby Iraqi
attacks priorto the U.S. action, any crudeoil extractiontaking placethere at the time of the U.S.
action would have resulted in crudeoilthat wasnot a product capable of beingexported and not
in commerce,as described above.
3.49 As noted in Part 1,the U.S. actionsagainstthe platformswere directedat the
"topsides" of the platforms and not their "jackets"below the waterline. Thus, it cannot be
assumed or merely asserted that in damaging theplatforms, the United States damaged the
pipelines or precluded their use in transportingoilfrom other platforms.
3.50 Moreover, as discussedab~ve~~w ~,hilethe platformsat issuein this case were
connected to undersea pipelines, the pipelinesthemselves couldhavecontinuedto operate
independentlyof the platforms, to the extentthat they were also connectedto another platformor
other source ofproduct. Thus, the transportationfunction of the pipelineswas independent of
the extractionfunction carried out by the platforms.
3.51 Even had the associatedunderseapipelines been damaged,however, such damage
would havehad no effect on Iran's abilityto transport finishedproductsto market. The
undersea pipelinestransported unfinished crudeoil from a preliminarystagein its production
224See supra,para. 1.74.process to a subsequent stagein its productionprocess. Suchtransportation between production
phases does not constitute commercewithin themeaningof Article X, paragraph 1.
3.52 Iran also arguesthat, to theextentthe oil platformsat issue inthis case had facilities
for the separation of oil and gas,they were involved in an improvement functionwhich falls
within an expanded definition of commerce. First,the UnitedStates reiteratesthat an
improvement function in the manufacturingprocessdoes not properly fa11withinthe definition
of commerce for purposes of ArticleX, paragraph 1,ofthe 1955Treaty. In addition, however, it
must be noted that the separationfunctionat issueinthis case is of a particularlypreliminary
nature and could have been easily substituted forby Iran. As explained ab~ve~~t~ h,e separation
on the platforms was a first stageof processing that took place beforethe crudewas transferred
onshoreto Lavan and SirriIslands,wherea further stage of separationwas necessaryin order to
permit the oil to be loaded safelyont0 tankers forexport. Thus, the separationthattook place on
the platforms constituted apreliminarystep in the handlingofthe crude oil extractedfrom the
seabed, not acommercial processby whichthe oil was improved within evenan expanded
meaning of commerce in Article X,paragraph 1226I .ndeed, when damageto the Sirri D central
225Statement of EdwardO. Price,para.14-15,Exhibit212.
226Ibid.platform made it impossible for itto perform initial processingof oilproduced in the SirriC and
D andNosrat oilfields, it wouldhave been possibleforal1processing of the oil from those fields
to have taken place on Sirri Island, demonstratingthatthe role playedbythe Sirri D central
platform was not essential to the production andxportof oil from thesefields227.
Section 3. The Activities of Iran's Oil PlatformsDid Not Relateto Commerce "Between
the Territories"of Iran and the United States
3.53 Article X, paragraph 1,does not providethat there shallbe freedom of "commerce"
generally but, rather,that there shall be freedom of commerce "betweentheterritories ofthetwo
High Contracting Parties." Consequently, inorderto carry its burdenof proving a violation of
this provision, Iranmust show notjust that the extractionof oil at thethreeplatforms is properly
characterizedas "commerce" withinthe meaning of ArticleX,paragraph 1,but also that such
commerce was "between"Iran and the United States. To that end, Iranhas alleged that the U.S.
actions against Iran's oil platformsprevented Iranfromengaging in commerce with the territory
of the United States. Iran's theory seemsto be that, had its oil platforms notbeenagedby
the United States,Iran would havebeen ableto sel1greatervolumes of oil to customers located
in the United Statesthan it actually soldto such customersin light ofthe damage to the
platforms.
227Ibid .ara.18. 3.54 Iran's theorydoesnotwithstand scrutiny. As described below,U.S. actions against
Iran's oil platforms did notpreventIran fromselling oil producedby the oil platformsto
customers in the United States. The U.S. actionof 19October 1987,was directed solelyat a
platform that was not inoperation. TheU.S. embargo againstIranian origin oil, in effect from
29 October 1987,thereaftereventedIranfrom sellingtothe United States. Iran's salesof oil to
customers located in Western Europe,whichIran attemptsto characterizeas commercewiththe
United States,are entirely irrelevantto this case. Moreover, even had Iran been able toexport oil
to the United States, it was constrainedby its OPEC quotas and maintained excess capacity
throughout the relevant period; there is nothing to suggestthat, hadthe platforms been available,
Iran would have produced moreoil for saleto customers inthe United States.
A. THEU.S.EMBARGO PREVENTE IRAN FROM EXPORTINO GILFROM THEPLATFORM TO
CUSTOMER STHEUNITED STATES DURING THERELEVANT TIMEPERIOD
3.55 As the United Statesexplained inits Counter-Memorial,it is plain thatthe U.S.
military actionsagainst Iran's oil platformshad no effect on Iran's ability to engage in oil
commerce withthe United States.
3.56 The Rostam platformcomplexwas not producing anyil atthe time of the U.S.
actions against iton 19October 1987. Iranacknowledgesthis fa~.ecausethe Rostam
See Reply,para3.13("TheReshadat R-7 platfhadbeen attackedby Iraqo16October1986,
resultinginthestoppageof productionnotonlyfromR-7 itself,butalso from theReshadatR-4andR-3
platformsandtheResalatplatfor...Whilea secondattackby Iraqon theReshadatcomplexhad
occurred on15July1987andcausedcertainsetbackstothereconstructionwork,itwasanticipatedthatplatform complex was not producing any oil atthe time,any damage sufferedby the platform
complex had no impact on the volume of oil Iranwas then able to sel1to the United States. The
situation afterthe U.S. actions was exactly the sameas that before: Iransold no oil to the United
States from the Rostarn platform complex.
3.57 The possibility thatthe Rostamplatformcomplex may havebeen returned to
production soonerin the absence of the U.S. actionis of no consequence inthis context because
ten days afterthe actions againstthe Rostamplatformcomplex, the UnitedStates banned the
import of Iranian origin oil, thus preventing anyfurtherpurchases ofoilfrom Iran's oilplatforms
- or from any other Iranian source - by customerslocatedin the United States. Again, Iran
concedesthis fact: in its words, "the sanctionsadoptedunder ExecutiveOrderNo. 12613on 29
October 1987effectively putan end to any importsof Iraniancrude oilinto the United States229".
3.58 Like Rostarn, Sassanwas not in operationat the time of the U.S. action againstit.
While Sirri appears to have beenin operation atthetime ofthe U.S. actionsin April 1988,these
actions occurred long afterthe ban by the UnitedStatesonthe import ofIranian oil.
3.59 As a result of the embargo, theeffectofwhich Iran hascon~eded,~~a Ony darnage
crude oil production from the Reshadat and Resalat fields wouldresume by the end of October 1987.").
229Reply, para. 3.22.
230Iran has submitted to the Court a statement of Mr. Syed-HosseinHosseini,which purports to provide
evidence "ofcontracts concluded with American oil companiesforthe exportof Iranian oil to the United
States both before and after theUS attacks onranianoilplatforms." HosseiniStatement, para. 16,
Reply, VolumeIII. There is no dispute that Iran exported oilto the United States bothbefore the U.S.
embargo went into effect and after the embargo was lifted. However, Mr. Hosseinidoes not, and indeeddone to Iran's oil platforms by U.S. actions was irrelevant to Iran's ability to export oil to
customers located in the United States231.Even if the platforms had suffered no damage and
produced at full capacity, Iran would have remained unable to sel1any oil to customers located in
the United States because the embargo prohibited such sales. Iran has not alleged that the U.S.
embargo violated the 1955 Treaty.
B. IRAN'SASSERTIONS ABOUTU.S. PURCHASES OF PETROLEUM PRODUCT FROMWESTERN
EUROPE AREIRRELEVANT
3.60 Iran attempts to blur these simple facts by offering the Court irrelevant evidence of
purchases by customers in the United Statesof refined petroleum products from Western Europe.
cannot, show that Iran exported oil to the territory of the United States in the period of time
theU.S. embargo was in effect, which coversal1periods oftime relevantto this case.
AIIof the documents Mr. Hosseinirefers to in his statement relate to sales of petroleum that took
place before the imposition of the U.S.embargo,or after its lifting,or to transactions with no connection
to the territoryof the United States. of these documents showthat Iran continuedto export oil to
the territory of the United Statesngthe period in which the U.S. embargo was in effect, or that Iran
would have been able toexport oil from the platforms to the territory of the United States ifthe attacks on
the platforms had not occurred. It is perhapsforthis reason that Iran makes no reference to this portion
of Mr. Hosseini's statement in the text of itsReply. To avoid any misunderstanding on the Court's part,
however, the document attached atxhibit225outlines in detail the documents attached to Mr.
Hosseini's statement and demonstratestheir irrelevanceto this case.
231Iran lias not assertedthat, absent the U.S. actions on 19October 1987,the Rostam plarform complex
would have begun producing oilagain beforethe impositionof the U.S embargo on 29 October 1987.
Iran has asserted generally that "itwas anticipatedthat oil production from the Reshadat and
Resalat fields would resume bythe end ofOctober 1987"(Reply, para.13), but it has provided no
evidence inthe form of contemporaneousrecords of its repair efforts or of its imminentpreparationsto
resume production from the platformsto supportthis assertion or to demonstratethat production from the
platforms would have resumed prior to 29 October 1987.In so doing, Iranattempts to suggest that transactionsfor the sale ofrefinedpetroleum products
between buyers inthe United States and sellersin WesternEurope somehowconstitute
commerce betweenthe territoriesof Iran and theUnitedStates. Iran's theoryis absurd and must
be rejected.
1. The Odell Report Describes Iranian Oil Salesto WesternEurope,Not
to the UnitedStates
3.61 Iran's theory is based chiefly on areportpreparedby Professor Peter Odell. This
Report doesnot discuss salesof petroleum or petroleumproducts from the territoryof Iran to the
territory ofthe United States. In fact, ProfessorOdellconcedesthat the U.S. embargo
"completelydestroyed Iran'strade with the UnitedStates", making such sales impossible232
3.62 Instead, ProfessorOdell's Report is devotedto explaininghow Iran compensated
for its inability to sell oil to the territory of the UnitedStatesby selling increasedvolumes of oil
to buyers in Western Europe. Accordingto ProfessorOdell, in lightof the U.S. embargo, "the
only option lefi open for Iran in an effort to sustainits exportswas to sendadditional crudeoil to
Europe for conversion to productswithin the complexityof the European downstream oil system
and then sellthese products to the US233".
232Reportof ProfessorPeterOdell(hereinafter"Ode11 Report"),p. 19,Reply,Vol.III.
233Ibid.,p.20. ProfessorOdellobservesinthisregardthattheannualvolumeofoilIransold to countries
in Western Europe increasedby70percentbetween1986and 1988.OdellReport,p. 10,Reply,Vol. III. 3.63 Notably, Professor Odelldoesnot, and indeedcannot,assertthat Iran played any
relevant role inthe sale of petroleurnproductsfromWestern Europetothe United States to
which he refers inthe passage cited immediately above. Professor Odelllater characterizesthese
transactions as "indirect trade"between Iranandthe United States. But his use ofthe word
"indirect" servesonly to emphasize thatthese salesdid not amountto transactions between the
territories of Iran andthe United States. Customersinthe United Statesbought refined
petroleum productsfrom, and engagedin commercewith, sellersin Western Europe, notwith
sellers in the territory of Iran.
2. Iran's Oil Sales to Western Europe HadNo Connectionwiththe
Territorvof the United States
(a) Transactions betweenU.S.buversand Western European sellers had
no connectionwiththe territorv ofIran
3.64 Iran attaches legal significanceto its saleof crude oil fromthe territory of Iranto
refineries in the territories of countriesin WesternEurope. Thesetransactions are irrelevant,
however. The territory of the United Stateshad no connection withthese transactions.
3.65 Similarly, the transactionsby which ProfessorOdellobservesthat the United States
purchased refined petroleum productsfrom WesternEurope had noconnection withthe territory
of Iran. Thesetransactions werebetweensellers located in Western Europe and buyers locatedin
the United States. The products in questiondid nottransit Iran's territoryon their way to theUnited States. Irandid not regulateor tax the transactions. Iran hadno legalrights or
obligations arisingfrom these transactions. Nordid Iranderiveany financial benefitas a result
of these transactions.
(b) The goodsthe United States bought from WesternEurope constituted
different productsthan those Iran soldto WesternEurope
3.66 That sales of petroleumproducts between WesternEurope and the United Statesdid
not give rise to commerce withIran is fùrther demonstratedbythe fact that theproducts
purchased by U.S.buyers were notthe sarneproducts asthoseIran sold to its Western European
customers. Iran sold its crudeoil to buyers inWesternEurope. U.S. purchasers bought refined
petroleum productsfiom WesternEurope, not crudeoil.The oil refining process transforms
crude oil into a new productwithdifferent uses and higher value. Far from beingmere
middlemen facilitatingan otherwiseprohibited exchangebetweenIran and the United States,
Western European refinerscreatedfrom raw materialstheproductbeing exchanged. Iran'sonly
role was providingan input intothe production process. Indeed,it would not necessarily have
been clearto the purchasersofthe refined productswhether,or to what extent, Iranian crudewas
incorporated inthe refined products. To borrow an analogyfromProfessor Odell,Iran's claimof
responsibility forthe production and sale of WesternEuropeanrefined petroleumproducts is
akin to a wheat farmer claiming responsibility for thebaking andsale of a loafof bread. 3.67 That crude oil andrefinedpetroleumproducts are fùndarnentally differentgoodsis
reflected intheir treatment undernational trade regulation regimes. As a firstmatter,crude oil
and petroleumproducts are classifiedas differentproductsunder the tariff schedulesof al1major
trading nations.The World Customs Organization's Harmonized Cornmodity Description and
Coding Systemdistinguishes between, andgives differentclassification headingsto,crude oil
and a range of petroleum products derivedfromcrude oil, including toppedcrudes,petroleum
spirit, white spirit, kerosene, gas-oils, fueloils, spindle-oils and lubricating oils,andwhite~ils~~~.
These differencesin classification ofcrudeoil and petroleumproducts derived fromcrudeoil
reflect the factthat characteristicsand uses of crudeoil aredifferent fromthose of petroleum
products.
3.68 Second,under the trade regulationregimesof major trading States,refined
petroleum productsare deemedto originate inthe territoryofthe country where the refining took
place, not thatof the country thatprovidedthe crudeoil from which the products wererefix~ed~~*.
234See World Customs Organization Harmonized CommodityDescription and Coding System Headings
27.09 and 27.10 and explanatory notes thereto, Exhibit 226.
235See European Union, Council Regulation(EEC) 3576192"on the definition of the concept of
'origiiiatingproducts' applicable to certain mineral products andto certain products of the chemical or
allied industries, within the framework of the preferential tariffarrangements granted by the Community
to third countries", 1992O.J. (L364), arts. l(b), (3) and annex, Exhibit 227 (place of originof product
manufactured from other products is the place where "thematerials concerned have been sufficiently
worked or processed"; operations of refining crude oil carryingtariff c1assificat;on2709 into refined
petroleum products carrying tariff classifications2710to 2712represents sufficient workingor
processing to confer origin. Refined products arethus deemed to originate in the place of refining, not
the place of origin of the crude oil from which theywere refined); United States of America, Code of
Federal Regulations, Volume 19,Sections 102.11(a)(3), 102.20,Exhibit 228 (change in a product
resulting in change in its tariff classification confers origin; change in a product to tariff classificationThis reflectsthe fact that the process of creatingpetroleumproducts substantiallytransforms
crude oil into a separate article with different functions and uses. Thedefiningcharacteristic of
refined petroleum products is that they are refined,notthat they aremade from crude oil.
3.69 A similar situationobtained at the time ofthe negotiationof the 1955Treaty. For
example, the standard put forth by the InternationalChamberof Commercein 1937,and againin
1949,determinedthe origin of a goodprocessedinmorethan one countrybased on:
"thecountry in which the lastmanufacturingprocesshas takenplace,provided that the
process is economicallyjustified and important. An "importantmanufacturing process"
shallbe one which effects a substantialchangein the natureof the produ~t'~~."
3.70 It should be noted that the broad readingof Article X,paragraph 1,suggested by
Iran would, in this regard, create suchwide indeterminacy with respect to theinterpretation and
the application of the 1955Treaty asto make it virtuallyimpossibleto determinewhether a
particular activity is taking place underthe umbrellaofthe Treaty or outside it237.
3.71 Such an interpretationwould also createinnumerableconflictswith international
business law: no one involved in the day-to-day practiceof internationalbusiness transactions -
not the shippers, or the carriers,orthe banks, or the insurers,or the brokers - would regard the
27 10fromany othertariff classificationconfersorigin.Refinedproductsarethusdeemedto originatein
theplaceof refining,not theplaceof originof thecrudeoil from which they werr eefined).
236Hany C.Hawkins,Commercial Treatiesanddgreements: PrincipleandPractice p. 50 (195 l)Exhibit
229.
237See Reply,paras.3.17-3.30.shipment ofIranian crude oil to Europefor refining asa commercial transaction betweenIran
and the UnitedStates, even if the petroleumproducts were for ultimate saleto the United States
and it were possibleto trace the Iraniancrudeto a particular refinedprodu~t~~~.
C. DAMAGT EOTHEPLATFORM HSADNOEFFECT ONTHEAMOUNT OFOILIRANPRODUCED
3.72 Even ifthe U.S. embargoonIranianorigin oil had not prevented Iran from selling
its oil to customers in the United States,anymageto Iran's oil platforms resulting fromU.S.
actions would still have had no effect onthe volume of Iran's salesof oil to customers located in
the United States. This isbecause,evenin light ofdamageto the platforms, Iran possessed
production capacitythat exceeded its Organizationof Petroleum Exporting Countries (hereinafter
238The United Statesnotes that shipments ofcrudeoil from Iran to Europe for refinement, possibly
followed bythe sale of some of the refinedto the United States,would notbe regarded underthe
treaties or customary practices regulating internationalbusinesstransactions as constituting a commercial
transaction between Iran and the United States.Whetherviewed fromthe perspective of aract forthe
sale of goodsnder conventions suchas the UNConvention on theContracts forthe International Saleof
Goods (CISG), 19 International Legal Materials,p. 668 (1980)(to which the United States and
approximately 57 other Statesare party),oras a contract forthe carriage of a good by sea underthe
International Convention for the Unification ofCertain Rules Relating to Bills of Lading forthe Carriage
of Goods by Sea, 120LNTS 155(to whichboth Iran andthe United Statesare party), or from the
perspective of howsuch an activity wouldbe financedthrough use of a letter of credit subject to the
widely-used Internationalhamber of Commerce'sUniform Code of Practices (UCP), none of these
sources of lawwould regard the commercial transactionto be one from Iran to the United States. Further,
insurers view the sale of crude oil andthe saleof refined petroleumproducts as separate transactions,
each insurableseparately.A decision bythis Court that suchan attenuated flowof trade constitutes a
single commercial transaction between Iranandthe United Stateswould runcounter to contemporary
understandings inthe international businesscommunity."OPEC")quotaand maintained its excess productioncapacityinthe period following the U.S.
actions.
3.73 As a member of OPEC,Iran's oil productionlevels are regulatedby OPEC, and
generally arenot to exceed productionquotas establishedby OPEC. Whilethe oil production
levels of OPECmembers may slightly exceed or fa11short of their productionquotasin particular
months, OPECmembers arenotto exceedtheir productionquotas over the longterm.
3.74 In spite of damageto its oil platforms resulting fromU.S. actions, Iran continued to
meet its OPECquota throughout the period followingthe U.S.actions239.Moreover, throughout
this period, Iranhad the capacitytoproduce more oilthan it actually did, eventaking into
account its inability to use the Rostarn,Sassan, andSirriplatformsto produce oil. In December
1987,followingthe U.S. actionsagainstthe Rostarnplatformcomplex, Iran's Oil Minister,
Gholamreza Aghazadeh, statedthat Iran was one of fiveOPEC member countries"with excess
production capacity" and "asubstantial potentialforhigher production" overthe then-existing
OPEC productionquotas240.Nearlythree years later,in September 1990,Aghazadehconfirmed
the continuing character of its excess capacity: "[a]sto when we plan to increaseOuroil
production, wehave the capacityto increaseOuroilby 500,000barrels. Howeverwe do not
239StatementofEdward O. Price, para6,Exhibit212.
240"Iran'sGholamrezaAghazadeh" , iddlEast Economic Survey ,1/28December 1987,p. D17,attached
to StatementofEdward O. PriceasAnnex C,Exliibit212.consider the present to be the right time for this course24'."
3.75 GivenIran's excess production capacityduring this period, there is no basis for
concluding that Iranwould have produced moreoil had its oil platformsnot been damaged.
3.76 In this Part, the United Stateshas demonstratedthat Iran cannotsustainits burden
of proving thatthe United States violated ArticleX,paragraph 1. First, Iran has failed to prove
that the extractionofthe crude oil fromthree oil platforms constituted "commerce" within the
meaning ofthis provision. The term "commerce"inArticleX, paragraph - when read inthe
context of the 1955Treaty as a wholeand in lightof its negotiating history - is directed at
regulation of maritime commerce,not commercein a generalsense. These platforms did not
serve asports nor were they otherwise engaged in maritime commerce. Further, even if the Court
were to considerthe meaning of "commerce"in a generalsense,that term does not encompass
the extraction ofcrude oil. Second,even if the Courtwere toconcludethat such extraction of .
crude oil constitutes "commerce"within the meaningof Article X, paragraph 1,Iranhas failedto
prove that this commerce was "betweenthe territoriesof the two High Contracting Parties."At
the times relevant to this case, Iran's oil platforms were eithernot in operation or could not ship
oil to the United States due to the U.S. embargo. Consequently,Iranhas failed to sustain its
241Statement ofEdward O. Price,Annex D, Exhibit212.
109burden of establishingthat the UnitedStates hindered"commerce"that was "between"Iran and
the United States.In light of Iran'sfailure, the Court should find thatthe United States did not
breach its obligationsto Iran underArticle X, paragraph1,and thatthe claims of Iran are
accordingly dismissed. PART IV
ARTICLE XX(l)(d) OF THE 1955 TREATYEXCLUDESFROM ITSOPERATIONAND
APPLICATIONTHE U.S. ACTIONSAGAINSTTHE OILPLATFORMS
INTRODUCTION
4.01 The Counter-Memorial demonstratedthat U.S. measures againstIran's illegal
attacks fell squarely withinthe "essential securityinterests" exceptionof Article XX,paragraph
1(d), which provides:
"1.The present Treaty shall not precludethe application of measure...
(d) ... necessar.. .to protect [aparty's]essential security interests."
U.S. actions were not prohibited by the 1955Treatybecausethey were necessaryto protect the
United States essential security interests." Wereemphasizehere that the plainlanguage of the
provision, earlier discussionsof similar languagebythe Court, and the provision's historyand
context al1show that the U.S. measures werenot prohibitedby the Treat~~~~.
4.02 Iran's Reply, however,failsto appreciatethatthe exception createby Article XX,
paragraph 1(d) (the "Exceptions Clause") isintegralto the proper operationof the Treaty. The
provision confirms that the Treaty is designedto regulateaspects of an economic relationship
between Iran and the United States, not measuresappliedto protect a Party's essentialsecurity
interests. It neither authorizes nor disallowsanyparticular measure thatis necessary to protect a
Party's essential security interest. It simplyremovessuchmeasures from the scope, operation
24See Counter-Mernorial, paras.O1-3.41.and applicationofthe Treaty. Therefore,the issue beforethe Court is not, as Iran would have it,
whether the U.S. actions were prohibitedby general internationallaw (though PartV
demonstrates that U.S. actions surelywere consistentwiththe lawrelatedto the use of force in
self-defense). Ifthe Court agreesthat the U.S. actions fa11within the scope of the Exceptions
Clause, thenthe Court would not needto go further andexamine whether U.S. actionsmeet the
altogether differentrequirementsofthe law of self-defense. Sucha decision, which neediot
address the fundamental rules associatedwith internationalpeaceand security,is contemplated
by the Treaty. Iran, by arguingthatArticle XX,paragraph 1(d) has no effect otherthan to
provide a mechanism by which the lawfulness of a Party's measuresnecessaryto protect its
essential securityinterest can be assessedpursuant to "generalinternational law", reads outof
the Treaty a crucialprovision on thebasis of which it wasc~ncluded~~~.
4.03. In this Part, the UnitedStates first demonstratesthatUS. actions at issueinthis
case were necessaryto protect itsessential security interestsand therefore were not prohibitedby
the Treaty. The United States contrasts its position on ArticleXX,paragraph l(d) with Iran's
position, illustratingIran's attemptto eviscerate the provision in clearviolation ofthe
fundamental canonof treaty interpretation,the principleof effectiveness(Le.,that provisions
243Reply,para.7.71 ("... paragraph(l)(d) must beinterpretedinthe lightof generalinternationallaw ..
..Nor canitbe interpretedso asto allowthatpartyto actinaway which iswholly unjustifiedunderthe
normalrulesformaintainingfriendly relationsbetween States").should be given effect rather than rendered n~llities)~~~T.he United Statesthen establishes that
the Exceptions Clause provides a wide area of latitude fora Partyto applymeasures "necessary
to protect its essential securiinter est^^^^ ." doing so,the United Statesshows that the Court
should affordthe Party invokingArticle XX,paragraph 1(d) anappropriatemeasure of discretion
in determiningwhen circumstancespose a threatto its essentialsecurity interests and what
means are necessary to protectthem.
244Iranseeks toturnthe principleof "effectiveness"to itsown benefitin its Reply.See Reply, para.7.75.
24See also Couilter-Memorialp , aras.3.23-3.38 (examiningthehistoryof ArticleXX(I)(d)'s development
andcontext). CHAPTER1
THE UNITEDSTATESACTIONSWERE"NECESSARY ...TO PROTECTITS
ESSENTIAL SECURITY INTERESTS"
Section 1. The Ordinary MeaningofArticleXX(l)(d)
4.04 Asthe Counter-Memorialdemonstrated,the U.S.actionsat issue in this caseare
clearly excluded from the application of the Treatybecause, accordingto ArticleXX,paragraph
1(d) of the Treaty,they were "measures. ..necessary ... to protectits essential security
inter est^^^^."s a result of this provision, obligationsunder the Treatydo not applyto measures
falling within the exception. Article XX, paragrap1(d) is designedto provide a complete
defense to any claim involving obligationsunderthe Treaty inrespect of such rneasures.
Interpreted "in goodfaith in accordancewiththe ordinarymeaningto be given to the terms ofthe
treaty in their context and in light of itsobject and p~rpose~~',t"heapplicationof the Exceptions
Clause will includethe following aspects:
"Measures"include a broad range of actions,from actionsinvolving theuse offorce to
economic and administrativepoliciesand any other "planor courseofaction intendedto attain
some obje~t~~~.I"ran's attempt to limit "measures"underthe Treatyto "regulatory"or
24Counter-Memorialp ,ara.3.03et.seq.
247ViennaConventionontheLaw of Treaties, Artic31(l),1155 UNTS 3 3.
248Counter-Mernorial,ara.3.06,quotingTheOxfordEnglishDictionary,p. 528 (2d.ed.1989)."administrative"actions249 finds nosupport in the language ofthe Treaty or itsnegotiating
record. As theCourt in Nicaragua noted, "[Ilt is difficultto denythat self-defenceagainst an
armed attack corresponds to measures necessaryto protectessential securityinterests2'0."
"Essentialsecurity interests" arethose intereststhat materially and substantially affect
a State. As "essential" interests,they are importantratherthan limited or marginalin nature. As
"security" interests,they referin a broad senseto the "safetyor safeguarding ofthe interests of a
State . ..againstdanger" anda "freedom from risk ordange$"." The Court inNicaragua noted
that "the conceptof essential security interests certainlyextendsbeyond the conceptof armed
atta~k~~ ~.
"Necessary"measuresare those that arerequiredin orderto "achieve a certain resultor
effect", evaluated inlight of the circumstances reigningatthe time253.
4.05 The U.S. actions at issuein this case clearlymeetthe standard setout in Article XX,
paragraph 1(d). Iran's actionsthreatened essentialsecurityinterestsof the United States: the
249Reply, para.7.73.
250Nicaragua,Merits,Judgrnent, I.C.J. Reports 1986, para. 224.
251Counter-Mernorialp ,ara. 3.08-09,quotingTheAmericanHeritageDictionaryoftheEnglishLanguage,
p. 1117(3d ed. 1992).
252Nicaragua,Merits, Judgment I.C.J. Reports 1986, para. 224.
253Counter-Meinorialp ,ara. 3.07,quotingTheAmericanHeritage Dictionary of theEnglishLanguage, p.
1117(3d ed. 1992).integrity of U.S.merchant andmilitary vessels, the safetyof U.S. citizensand military personnel
and their cargo,the uninterruptedflow of maritime commerce(in particular,oil commerce) in the
Gulf, and the freedom of navigationin the Gulf.
4.06 It bears emphasizingthe substantialdifferencesin the evidenceavailableto the
Court in this caseas compared tothe evidence availableinNicaragua. In this case, as the
evidence overwhelmingly demonstrates,U.S. activities invokedas fallingunderthe Exceptions
Clause were, "atthetime they weretaken, measures necessaryto protectits essential security
intere~ts*~~.By contrast, the Court suggestedinNicaraguathat it could notfind U.S. actions in
that case to be necessary to protect U.S. essential security interestslargelybecauseconfirming
evidence was not available to it. For instance,the Court did not findthat the mining of
Nicaraguan harbors and attacks on ports and oil installations werenecessaryin light of "the
whole situation . .sofar as the Courtis informedof it2"."In connectionwiththe trade
embargo, the Courtstated, "[Slinceno evidence atal1is available to showhowNicaraguan
policies had in fact become athreatto 'essential security interest..the Court isunable to find
that the embargowas 'necessary' to protect thoseinter est^^^^ .he substantialrecord in thiscase
254Nicaragua,Merits, Judgment ,.C.J.Reports1986,para. 281.
255Ibid . ,ra. 82(emphasis added).
256Ibid.demonstratesquite a contrary situation, namely, thatthe factsfa11squarely and definitely within
the parametersof Article XX,paragraph 1(d).
Section2. Iran Threatened "EssentialSecurityInterests"of the United States and
the U.S. Actions to Protect SuchInterests Were Neeessary
4.07 The evidence makes clear boththat Iran's attackson U.S. and other neutral shipping
in the Gulf threatened essentialU.S. security interestsandthat the actionstaken by the United
States were necessaryto protectthem. The United Statesrepeatedly communicatedto Iran, both
publicly and privately,that the secwity of neutral commerceand navigation inthe Gulfwas
among the most significant and vital interests of the UnitedStates, emphasizing that it would
take necessarystepsto protect this "essential security interest". Iran'sdecisionto persist in its
attacks, andto rebuke al1effortsby the United Statesto resolveIran'sthreats through diplomatic
means, leftthe United Statesno optionto protect itsessentialsecurity interests otherthan its
actions against Iran'soilplatfoms.
4.08 Even before Iran's first attackon U.S. shipping,the United States advised Iran that
its attacks on neutral shippinginthe Gulf threatened essentialsecurity interests ofthe United
States. Public and private clarificationsof U.S. concernincluded:
A diplomatic note to Iran dated23 May 1987urging Iran notto take provocative steps
or "to increase the dangerto neutral internationalshipping," and stating, "Asthe
Islamic Republic of Iran is aware,the U.S.haslong been committedto the principle of free navigation andto keeping openthe Strait of Hormuzforthe free flow of 0i1~'~."
A 29 May 1987publicstatement by President Reagan inwhichhe explained that "the
vital interests of the Americanpeople ... are at stake inthe PersianGulf' and that
economic dislocation that would"[shake] Oureconomy to its foundations" could
result "ifIran was allowedto block the freepassage of neutralshipping" in the
G~lf2'~.
A 15June 1987publicstatement by U.S. Secretary of DefenseCasparWeinberger, in
which he stated that "Theunimpeded flowof oil throughthe Gulfis critical to the
economic health ofthe western world, andwe have an importantstake in non-
belligerent freedomofnavigation there;we have a vital economicstake in seeing that
this supply of oil continues,givenWesternreliance upon Gulfoil imports,the
ovenvhelming proportionof world oil reserves held by the Gulfcountries, andthe
deep and growing interdependenceof Western econ~mies~'~."
4.09 Whenthese effortsto persuadeIranto end its attacks on neutral shippingfailed, the
United States took additional stepsto communicatetoIran the threatthat its actions posed to
essential U.S. security interestsandto protect thoseinterests. Thesesteps included:
The decision in July 1987to reflag Kuwaititankers underUnited States registry. The
United States wasjoined in this effortby the United Kingdomand the Soviet Union.
The July 1987 launchingof OperationEarnest Will to providemilitary escorts for
U.S. shipping in the Gulf. Other Statesthat sent military vessels to theGulf to protect
'" United States Departmen otfState documenetntitled"MessagetoIran,"23 May1987,Exhibit39.
''5"VitalU.S.InterestsinthePersianGulf,"Statement by PresidentReagan, 29 May1987,Exhibit230.
259Caspar W. Weinberger, A Reportto the CongressonSecurityArrangements in the Persian Gulf15
June 1987, p.2,Exhibit231. neutral shipping included Belgium, France, Italy,the Netherlands, the Soviet Union,
andthe United Kingd~m*~'.
An 18July 1987diplomatic communication to Iran, in whichthe United States
inforrnedIran ofthe effortsitplanned to take to protect neutral shipping andstated,
"[tlhe Government of theUnited States regards as unacceptable any act which
threatens Ournaval units or any U.S. flag shipping. The Governmentof Iran should
be fullyaware that the UnitedStates will takeal1appropriatemeasures to protect and
defendal1U.S. flag shipsagainstattack from the Silkwormor any other weapon or
weapons system .. .The Governmentof the United Statestakesthis opportunity to
expressits expectation that the Government of the Islamic Republicof Iran and its
Arrnedforces will exerciseresponsibility and restraint, in keeping withthe laws of
nations, with regard to the livesand property of the United States and otherstates not
involved inthe ~onflict~~'."
4.10 Again,the U.S. efforts failedto deter Iran's attacksthat threatened essential U.S.
security interests. On24 July 1987,sixdays after the U.S. messageto Iran, Iran attacked witha
mine the U.S. flagged vesse1 Bridgeton. The United Statesrespondedby continuing its
diplomatic effortsto persuade Iran toceaseits attacks. On31August 1987,the United States
transmitted another messageto the Governmentof Iran. The messagenoted that:
"Asthe Government of Iranknows,the United Stateshas closely followedand takes.very
seriouslythe placing of mines inthe Persian Gulfand Gulf of Omanor other waters
wherethey threaten U.S. ships . . .The use of mines against neutralships or generallyto
disrupt or threaten navigation in international waters or territorial waters ofother
countriesis a clear, dangerousviolationof internationallaw. ...[I]fIran or forces
responsible to it shouldlay . . .mines so as to endangerU.S. military or commercial
260See supra,para 1.37.
261UnitedStates Departmeno tfStatedocumententitled"DemarchetoIran: Use of Silkworms/Protection
Regime," Exhibit42. vessels, the U.S. Governmentwould considerthis an extremely dangerous escalation and
a direct militarythreat262."
4.11 Yet again, U.S.diplomatic efforts failedto persuade Iran to end its attackson U.S.
and other neutral shippingthatthreatened essentialU.S. security interests. On 16October 1987,
Iran launched a missile attackagainstthe U.S. flaggedvesse1Sea Isle City t,e day after it
launched a similar missile attackagainstthe U.S. ownedtankerSungari. Inthe months
following these attacks, Iranlaunchedfurther attacks against the U.S. owned tankerLucy (15
November 1987),the U.S. ownedtankerEsso Freeport(16 November 1987),the U.S. owned
tanker Diane (7 February 1988),the USSSamueIB.Roberts(14 April 1988);the U.S. owned
tanker EssoDemetia (11June 1988).
4.12 The evidence furtherdsmonstrates that Iranemployed its oil platformsin its attacks
on U.S. and other neutral shipping. As described inPart1,the platforms contributedto attacks
on neutral shipping by, for instance,monitoring the movementsof convoys with radar and
transmitting information abouttheir movementswith communications equipment. Measures to
render the platforms incapableof contributingto furtherattackson U.S. shipping werethus
necessary. Inthe case of Rostam,for instance,Iranianattackson neutral shipping in the
immediate area dramatically decreased following U.S. actions againstthe platform.
4.13 In contrast to the evidence reviewedbythe Court in Nicaragua,the evidence before
the Court inthis case overwhelminglydemonstrates that, atthe time the U.S. measures against
262"MessagefortheGovernmentofIran," U.S.DepartmentofState,Exhibit 56.
120the oil platforms weretaken,they were necessaryto protect U.S.essential security inter est^^^^.
Iran's attacks threatenedthe U.S. interest inthe freedomand security of neutralcommerce and
navigation in the Gulf, and theU.S. interest in protectingthe safety and securityof U.S.
nationals, shipping, and property. TheUnited Statesemphasizedrepeatedly the great importance
it attachedtothese interests, both publicly andthrough diplomatic correspondencewith Iran.
4.14 Iran's attacks on neutral shippingdisruptedfreedomof navigationin the Gulf,
making it dangerous and significantly more costlyforU.S.and other neutral shipping to travel in
the Gulf, and impeding the freeflow of oil from theGulf. Iran's attacks also violated the safety
and security of U.S.citizensand their property. Forexarnple,ten U.S. sailorssuffered physical
injuries in Iran'smine attack onthe USSSamuelB.Roberts264S . ix members of the crew of Sea
IsleCity suffered significant injuriesas a result of Iran's missileattack; the ship7scaptain, John
Joseph Hunt, was permanently blinded and sufferedafracturedskull and manybroken bones,
and a second searnanwas alsoblinded265.BothSeaIsle Cit ynd the USSSamuelB. Roberts
suffered extensivedamage as a result of Iran's attacks;theUnited States incurredalmost $50
million in costs associated withthe rescue, transportandrepairofthe USSSamuelB. Roberts
263Nicaragua,Merits,Judgment,I.C.J.Reports 1986, para.282 ("...noevidenceatal1isavailableto
showhowNicaraguan policieshadinfactbecomeathreatto 'essential security interestsinMay 1985").
264SeeCounter-Mernorial, para 1.105.
265Ibid.,para1.65.following the Iranian atta~k~~~ I.an's attackscaused seriouspersona1injuriesand substantial
damage to U.S. personnel, shippingand cargo.
4.15 Many other countries'security interestswere also threatenedby Iran's actions.
Bahrain, Kuwait, Oman, Qatar, SaudiArabia, and the United Arab Emiratesstated in a letterto
the UN SecretaryGeneralthat "Iranianaggressionsonthe freedom of navigationto and fromthe
ports of our countries .. .constitutea threat to the stability and securityofthe area and have
serious implicationsfor internationalpeaceand ~ecurity~~'." The UN SecurityCouncil responded
to this letter with Resolution 552,which provides,in part:
"The Security Council,
Having considered the letter dated 21May 1984from the representativesof Bahrain,
Kuwait, Oman, Qatar, Saudi Arabiaand the United Arab Emirates (SI16574) complaining
against Iranian attackson commercialships en route to and fromtheports of Kuwait and
SaudiArabia,
4. Condemns these recent attackson commercialshipsen routeto andfrom the ports of
Kuwait and Saudi Arabia268".
266Ibid.,para.1.105.
267See Letterdated21 May 1984fromthe Representativesof Bahrain,Kuwait,Oman,Qatar, Saudi
Arabia,andtheUnitedArabEmiratesAddressedtothe Presidentof the SecurityCouncil, United Nations
DocumentSI16574, Exhibit189.
268Resolution 552, United NationsSecurityCouncil(2546h meeting, 1 June 1984), reprzntedin United
Nations DocumentSIRES1552(1984), Exhibit27.In June 1987,the United States, Canada,the United Kingdom,France, Italy, Germany, and Japan
adopted a statementin which they "reaffirm[ed]that the principleof freedom of navigationinthe
gulf is of paramount importancefor us and for othersandmust beupheld. The freeflow of oil
and othertrafficthrough the Straitof Hormuz mustcontinue~nimpeded~~~.I "ranianattacks drew
additional diplomaticprotests andcondemnation from,amongothers,the Arab League, Kuwait,
Bahrain, Oman, Qatar,Saudi Arabia,the United Arab Emirates,Egypt, Jordan, the Soviet Union,
Nonvay, Greece,Turkey, Djibouti,Morocco, Sudan,andthe YemenArab Rep~blic~~O S.ome
States, includingBelgium, France,Italy, the Netherlands,the SovietUnion, and the United
Kingdom, deployed warships to the Gulfin responseto Iran'satta~ks*~'.
4.16 The factsalso fullydemonstrate that theU.S.measures were necessaryto protect
essential securityinterests of the United Statesatthe time they wereken. Indeed, Iran
presented the United States no peacefulalternative to actionin self-defense.
4.17 Iran consistently ignoredthe repeated diplomaticeffortsofthe United States and the
UN SecurityCouncilto persuade it to endits armed attacksagainst U.S.and other neutral
shipping inthe Gulf. The United States continued its diplomaticeffortseven afier Iran launched
its first armedattack on a U.S. ship,Bridgeton, in July 1987.When,in October 1987,Iran
269G-7 Statementon Iran-IraqWarandFreedomof NavigationintheGulf,9 June1987,Exhibit232.
270Seesupra P,art1para. 1.1andaccompanying notes.
271Seesupra,para.1.37.attacked Sea Isle City,it becameclearthat furtherdiplomatic effortsto protectessential U.S.
security interests would not be effective. Peacefulmeans to protect essentialU.S.security
interests had been exhausted or hadproven to be futile. Iran's continuingattackson U.S.
shipping in the period followingthe attack onSeaIsle Cily, culminatingin itsApril 1988attack
on the USSSamuel B. Roberts, servedto furtheremphasizethat additionaldiplomaticefforts
would not bring Iran's attacksto an end. As a result,the actions takenbythe United States were,
according to the language ofNicaragua, "notmerelyusehl but necessary"forthe protection of
its essential securityinter est^^'^.
4.18 In summary, Iranhas giventhe Courtno basis to doubt the fundamental importance
the United States appropriately attached (and continuesto attach) to the securityof U.S. citizens
and property and freedom of commerceand navigationin the Gulf. The UnitedStates clearly
conveyed toIran the importanceofthese interests,both in words and inactions,including the
reflagging Kuwaiti vessels and escortingU.S. flaggedships. Iran's failureto respond to U.S.
diplomatic messages except by illegaluse of forcehighlights the necessityof the U.S. actionsto
protect its essential security interests.
272Nicaragua, Merits, Judgment, I.C.JReports 1986,para.224. Section3. Iran's Interpretation ofArticleXX(l)(d) Deprives it of Meaning, Contrary to
Basic Principles of Treaty Law
4.19 The United Stateshasshownthat Article XX,paragraph 1(d) is an integral
provision inthe Treaty scheme. Theextensivenegotiating history presentedin the Counter-
Memorial demonstratesthat the provisionwasan essentialpart ofthe Treaty, designedto ensure
that neitherparty would be precluded fromapplying measuresnecessary to protectits essential
securityintere~ts*'~T . he Treatyregulatestheeconomic relationship betweenits parties. It does
not regulatethe use of force,a matterleftto the UN Charterandthe law of self-defense. Nothing
in the negotiatinghistory supportsan interpretation thatwould provide it with sucha role. As
noted above,the Exceptions Clauseneitherauthorizes nordisallows any particularconduct with
regard to theuse of force in self-defense. Itsimply removesmeasures necessary to protecta
party's essential security interestsfromthe scope, operation and applicationof the treaty.
4.20 Yet Iran attemptsto diminishthe importance of, andthe ordinary meaningthat
should be givento, the ExceptionsClause,ultimately arguingthat "ArticleXX(l)(d) has no
additional exempting authority, overand above the provisionsof the Charter, so farasthe use of
force is ~oncerned'~~." IrancontendsthatArticle XX,paragraph 1(d) has no effectoutside the
law of self-defenseand useof forceunderthe UN Charter,sincethe latter is a "sufficient"
273See Counter-Memorial, paras. 3.23-3.38.
274Reply, para. 7.77.statement ofthe law covering"the sarne sphereofreference as paragraph(1)(d)275."Iran's
position renders the Exceptions Clause meaningless. The language and the purposeofthe Treaty
are differentthan the Charter. Self-defenseand measuresto protect essential securityinterests
are not identical. Indeed, theCourt recognized in Nicaraguathe autonomouspurposeof the
ExceptionsClause, noting that self-defenseis "partofthe wider categoryof measuresqualified"
in the Exceptions
4.21 Iran's argumentis contrary to the fundamentalprinciple of the law of treaties that
treaty provisions are to be given effect and not leadto unreasonable re~ults~~~ T.he Courthas
previously supported the principleof effectiveness,andits validity herehas beenconfirmedby
Iran's use of it in this case278.The Court recentlyexpressedits approvalof "oneof the
fundamentalprinciples of interpretationof treaties,consistently upheldby international
jurisprudence, narnely that of effecti~eness~~~.T "heCourt, in the CorfuChannelCase, said, "It
275Reply, para. 7.72.
276Nicaragua,Merits, Judgrnent, I.C.J.Reports 1986,para. 224.
'77CJ:Article 32, Vienna Conventionon the Law of Treaties.
278It arguesthat if ArticlXX, paragraph I(d) were to be interpreted to allow conduct conflictingwith the
Charter rules on use of force, it would be void for conflictwith ajus cogensnom, and becauseof the
inseparabilityrule in Article 44(5) of the Vienna Conventionon the Law of Treaties,the treaty as a whole
would bevoid. (Thus, Iran itselfinvokes the effectivenessprinciple.) Reply, para. 7.75.
279Case Concerningthe TerritorialDispute (LibyanArabJamahiriya v.Chad),I.C.J.Reports 1994p. 4,
para. 51. The Court cited additionalcases in supportofthe principle of effectivenessas well.would be incompatible withthe generallyacceptedrules of interpretationto admit that a
provision ofthis sort occurring in a SpecialAgreementshouldbe devoid ofpurpose or effe~t~~O."
The International Law Commission consideredthe principle embodiedin the principleof good
faith in Article3l(1) of the Vienna Conventionand stated:
"Whena treaty is open to two interpretationsoneof which does andthe other does not
enablethe treaty to have appropriateeffects, goodfaith and the objectsand purposes of
the treaty demand that the former interpretationshouldbe ad~pted~~'."
Iran asks the Court to adopt an interpretationofArticle XX, paragraph 1(d)that "doesnot enable
the treaty to have appropriate effects."
4.22 Iran's argumentis even less persuasive when considered within the contextof
Article 103of the UN Charter. Article 103provides:
"Inthe eventof a conflict between the obligationsof the Members of the UnitedNations
underthe present Charterand their obligationsunder any other international agreement,
their obligations underthe present Chartershallpre~ail~~~."
Accordingly, Article XX, paragraph1(d) would betotally ineffective ifit were designed to
derogate fromthe principles of the Charter,and it would be totally unnecessaryifit were
designed merelyto restate those principles. Thus,Iran's argument that the Exceptions Clause
''OCorfi Channel,I.C.J. Reports 1949,p.24.
*" 1966 YearBook ofthe International Law Commission,Vol. II, p.219. See also IanSinclair,The
Vienna Convention on the Law of Treaties, p. 118(2nd ed.1984).
282Article 103,UN Charter.merely preservesUN Charter obligationsrendersArticleXX,paragraph (l)(d) unnecessary and
superfluous -that is to Say,it deprivesit of effectiveness.
4.23 The assertion that theExceptions Clause shouldbe given a restricted interpretation
is, moreover, contrary to the ViennaConvention onthe Law of Treaties. Article XX,paragraph
l(d), like al1the other provisions ofthe Treaty, "shallbe interpreted in good faith in accordance
with the ordinarymeaning to be givento the terms of thetreaty in their contextand in the light of
its object and p~rpose~'~."Relyingonthejurisprudence of this Court,Jennings and Watts state
that "interpretationis not a matterof revising treatiesor of reading into them whatthey do not
expressly or by necessary implication contain, or of applyinga rule of interpretationso as to
produce a result contrary to the letteror spiritof the treaty'ste~t~~~.I"n rejectingan Iranian
claim for restrictive interpretation in a recent case beforeit, the Iran-U.S.Claims Tribunal
observed: "Tothe extent, if any,that the rule of restrictiveinterpretationhas any role to play in
the interpretation of treaties today,the Tribunal findsthat it is certainly not applicablein cases
where, as here,a treaty provision is clear andun ambigu ou^^^T ^."e same is true inthis case,
where ArticleXX, paragraph l(d) is clear andun ambigu ou^^^^.
283Article 31(1),Vienna Convention on the Lawof Treaties, 1155UNTS 331.
284Oppenheim S International Law,pp. 1271-72 (gthed., SirRobert Jennings& SirArthur Watts eds.
1992).
285Iran-U.S. Claims Tribunal, CaseAl28, (Dec 130-A-28-FT)(2000) para. 67 .
286Iran's claim for a restricted interpretationamounts ineffectto a suggestion that ArticleXX(l)(d)
should be givena special meaning. Article 3l(4) of the ViennaConvention is instructive. It providesthat a "special meaning shall be givento a term if it is established that the parties so intended." 1155
UNTS 33 1. Of course, Iran has failedto show that the parties have intendedthat Article XX(l)(d) be
read narrowly. The burden of establishinga special meaning rests on the party contending for a special
meaning. See Oppenheim SInternational Law, p. 1272note10 (91hed., Sir RobertJenning& Sir Arthur
Watts eds. 1992); WesternSahara, Advisory Opinion,I.C.J. Reports 1975,para.16 ("It is for Morocco
to demonstrate convincingly the use of the term withthat special meaning"). CHAPTERII
THE COURTSHOULDALLOWTHE PARTY INVOKING ARTICLE XX(l)(d) A
MEASURE OFDISCRETIONINITS APPLICATION
Section 1. SoundLegal PrinciplesSupportAccordinga Measure of Discretion totheParty
InvokingArticleXX(l)(d)
4.24 Even under the mostrigorousscrutiny,U.S.actionsagainstthe oil platforms fell
squarely withinthe terms of the Exceptions Clause. Whilethe Court shouldcarefully reviewthe
facts presented, a Party shouldbe recognizedto have a wide area of discretionin the application
of measures to protect its essential security interests. The U.S. delegationmade sucha point to
the Germandelegation in the negotiation ofa similarTreatyprior to conclusionof the 1955
Treaty. It noted "that national as well as internationalcourtswould probablygive veryheavy
weight to argumentspresented bythe governmentinvoking thereservationand would have
diffïculty infinding ajusticiable Yet Iran arguesthat the interpretationand application
of Article XX,paragraph l(d) is solely a questionforthe Court to answer,denying anyrole for a
Stateto determinewhether a particularsituation compels"theapplicationof measures ...
necessary ...to protect its essential secuinter est^^^ ^an's argumentis untenable. Article
'" See Counter-Memorial, para.3.33.
Reply, para.7.69.XX,paragraph 1(d) demands amorebalanced view, allocating primary responsibilityto the State
taking the necessary mea~ures~'~.
4.25 A measure of discretionshouldbe affordeda Party's good faith applicationof
measures to protect its essential security interests, a principle that follows logicallyfrom both
legal and practical perspectives. Professor Schachterhas cogently explainedthejurisprudential
basis for discretion inthis kindof situation:
"Although an argumentcanbe made that suchconcepts as national defencedo not lend
themselves to legal determinations,it wouldbemore appropriate to considerthe question
as one that involvesdeterminingthe margin of discretionlefi to the government
concemed in applying the concept. Thus it wouldbe possible for ajudicialtribunal to
determine that a particularactivity wasclearlyso far removed from self-defenceas to fa11
outside of the intentof the expressionused in the instrument. To deny eventhat
possibility to the Courtwouldrun counterto the underlying premise of a legaltreaty as
imposing some limit ondiscretionof the partyto the agreement. On the other hand, it
must be acknowledgedthat in many cases aterm such as 'national defence'allows a very
wide margin of appreciationand a courtwould beexceedingly cautious toavoid
imposing its own interpretationon whether a particular actis inthe national defence of
the State c~ncemed*~~."
289Shabtai Rosenne refers to the principleof good faithin a way most relevantto this case:
"[The] primary function, and perhaps [the]sole function [of good faith] is,as ater of positive
law, to allow the decision-makingauthorities a fair degree of freedom of action in interpreting
and applying the terms of the treaty-obligation ina concrete case. In thest instance, the
decision-making authorities will bethe parties themselves.. ." Shabtai Rosenne, Developments
in the Law of Treaties1945-1986,pp. 176-77(1989).
190Oscar Schachter, InternationalLaw in TheoryandPractice, pp. 221-22 (1991). Froma different but
analogous perspective, Professor Cheng said that it follows"from the general presumptionof good faith
that abuses of right cannot be presumed." Bin Cheng, GeneralPrinciples of Law as Applied by
International Courts and Tribunals,p. 136 (1953). 4.26 Article XX, paragraph l(d) presents a clear case in which "avery wide margin of
appreciation" should be recognized for the Party invoking it in good faith. The purpose of
Article XX, paragraph 1(d) is, after all, to exclude measures necessary to protect essential
sec&ity interests from the purview of an econornic treaty. Moreover, the key terms of Article
XX, paragraph (l)(d) - "necessary" and "essential security interests" -are well-understood to
have broad meanings not easily susceptible to judicial ~crutiny~~'.It is therefore unsurprising
that Iran has failed to show that U.S. actions were outside the scope ofthe Exceptions Clause292.
4.27 Instead, Iran engages in an attack on the good faith of the United States, making
arguments that are irrelevant to the United States claim that, in the face of attacks against it, it
was necessary to take measures to protect its essential security intere~ts*~~.In a situation such as
that resulting from Iran's attacks in the Gulf, only the State attacked can determine whether its
291See Counter-Memorial, paras. 3.03 -3.09 (examiningthe meaning of the terms found in Article
XX( 1)(dl).
292All Iran says is that, if the flow of oil was such an interestof the United States, it was "more vital to
Iran," Reply, para. 7.84, and thatecausethe U.S. did not attack Iraq, the U.S. is discredited. Reply,
para. 7.85. With respect to the other interests citedbythe United States,an without any basis suggests
that the U.S. citeshese in bad faith. Reply,para. 7.87. Again, Iran fails to provide the Court with any
framework to review "essential security interests."
293See Reply, paras. 7.92-7.95. Among Iran'smore outlandish claims is, "Ifthe United States'dominant
concern was the safeiy of its own ships,why did it notrespond by way ofself-defence when the Stark
was hit with significant damage and loss of life?" Reply, para. 7.94. As lran knows, soon after the attack
on the Stark Iraq accepted responsibility and offered to makereparation to the United States. 1sIran
arguing that the United States still retaineda right of self-defense in such a situation? We doubt that to be
the case, but Iran's frivolous attitude towardthe facts of this case underscores its inability to respond with
principles to the U.S.argument that the Courtmay determine that the ExceptionsClause applies in this
case.essential security interests arethreatenedand what specificmeasures are necessaryto protect
them. Oncethe State concemedhas shownthat it founditself compelled to act in a situationof
illegal use of force and attacks against it, the Courtshouldallow an appropriate measureof
discretion andwide area of latitudeto the State's assessmentof necessity. The Courtshould
reviewthe actions of a party onthe basis of al1of the circumstances governing at thetime.
4.28 Moreover, the negotiatinghistoryof ArticleXX,paragraph 1(d) demonstrates that
discretion isto be afforded theparty invokingthe provision. The Counter-Memorial thoroughly
examined the history of the ExceptionsClause,pointingout that the United Statesconsistently
explained to other treaty partnersand the U.S. Senate,decades before this case arose, that
exceptionsclauses in treaties of friendship,commerceandnavigation left "awide areaof
discretion to both parties in orderto allow for necessary actionoveran indefinitefuture294."At
the very least, it allowed eachPartydiscretionto take necessary action to protectits essential
security interests.
Section2. Discretionis an EstablishedJudicial Principle
4.29 As demonstratedabove,the United Statestook measures thatit considered
necessary to protect its essentialsecurityinterests. Ifthe Court reaches this issueasthe result of
a finding that the United Statestook action incompatiblewith Article X of the Treaty,the Court's
review should nonethelessbe extremelysensitiveto the circumstances goveming atthe time
294See CounteriMemorialp , ara.3.32;DispatchNo.2254fromGermany,Exhibit150.
133those actionswere taken, in particular theongoingthreatto U.S. essentialsecurity interests posed
by Iranianattacks.
4.30 The United States reemphasizesthat it is notasking the Courtto abstain from
reviewingthis case. On the contrary,it requeststhatthe Court recognizean appropriate measure
of discretionof the United States in the courseof its review. Suchdiscretionforms a part, for
example, of thejurisprudence of the EuropeanCourtof Hurnan Rights. Thewell-established
Europeandoctrine on the "marginof appreciation"supportsthe U.S. argument in favor of an
assessrnentof U.S. actions in light ofthe factsreigningat the time'95.As the European Court
noted in Ireland v. United Kingdom:
"Byreason of their direct and continuouscontactwith the pressingneeds of the moment,
the national authoritiesare inprinciple ina betterposition thanthe internationaljudge to
decideboth on the presence ofsuchan emergencyand on the natureand scope of
derogationsnecessary to avert it. ... [TlheCourtmust arriveat its decision in the light,
not ofa purely retrospective examination of the eficacy of those measures, but of the
conditions and circumstances reigning when they were originally taken and subsequently
~ppliedl~~."
29SProfessor J.G. Merrills has said that "[tlhe underlyingidea [for the marginof appreciation] is a simple
one: that in respect of many matters the Convention leavesthe Contracting Parties anarea of discretion
. .J.G. Merrills, TheDevelopment of InternationalLaw by the European CourtofHuman Rights, p. 151
(1993). Judge MacDonald writes that thejustification forthis margin of appreciationis that the state "by
reason of itsdirect and continuous contacts with the needsofthe moment, isinthe best position to
determine whether the derogation is 'strictlyrequired."'Ronald St. John MacDonald"The Margin of
Appreciation in the Jurisprudence of the European Courtof Human Rights",International Law at the
Time of its CodiJication:Essays inHonour ofRobertAgo, pp. 187, 193(1987).+Avery thorough review
ofthe doctrine may be found in Ronald St.John Macdonald,"The Margin ofAppreciation," in The
EuropeanSystemfor the Protection of HumanRightsp. 83 (Ronald St. John Macdonald et al., eds. 1993).
296Irelandv. UnitedKingdom, paras. 207,2 14(emphasisadded), EuropeanCourt of Human Rights,
13December 1977. 4.31 The European Court's examination of the actionsof member States may be
instructive. There,rather than substitutingitsown assessmentof what actions were requiredat
the time theywere taken, the Court acknowledgesthe discretionof member States. As Prof.
Merrills summarizesit in the contextof the European Court:
"[Olnlya measure whichwas 'manifestly without reasonable foundation' could be
overturnedat Strasbourgand,providedthe legislatureremained withinits margin of
appreciation, itwas 'not for the CourttoSaywhetherthe legislation represented thebest
solutionfor dealing with theproblemor whether the legislative discretion should have
beenexercised another ~ay~~~"'.
Iran has providedthe Court with no basis onwhich to concludethat U.S. actions fa11outsidethe
scope of the Exceptions Clause. In the faceof Iran's attacksby mines and missiles, the United
States out of necessity took necessaryactionagainst the oil platformsto protect its essential
security interests. Under the circumstances,the Court should acknowledge aParty's discretion
to take measures necessary to protect its essential securityinterests.
Section3. TheNicaraguaJudgmentSupportsthe Principle of Discretionof theParty
InvokingArticleXX(l)(d)
4.32 The Court inNicaraguaexpresseda readinessto acknowledge aparty's discretion
when it invokesthe exception ofArticleXX,paragraph l(d), noting that "whether a measureis
necessary to protect the essentialsecurityinterests of aarty is not...purely a question forthe
297J.G. Merrills, TheDevelopmentof InternationalLaw by theEuropean Courtof Human Rights p.157
(1993) (quoting from the Mellachercase, 169European Court ofHuman Rights (ser. A), para. 53).
135subjectivejudgment of the ~arty~~*.T "he Courtrecognizedthat such a determination required
judgment by the party invoking the provision;othenvisethe word "purely"would be
surplussage. The appropriate reading of the Court's assessmentis that ArticleXX,paragraph
1(d)requiresparties to ensure that actions they take are consistent with their treatyobligations or
exceptedfromthe treaty's operation.
4.33 Iran, to the contrary, arguesthatthe Court "heldthat the interpretation and
application ofthat exclusion was amatter for the Court, andthat the invokingStatehad no right
of 'auto-interpretation' with respect to thatprovision299."Iran misreads the basic point of the
Court, for theparagraph citedby Iran merely affirmsthe Court's jurisdiction to determine
whether the Exceptions Clause excludesparticular actions in a given case. The Courtnoted, in
part:
"Thisarticle [theExceptions Clause]cannotbe interpretedas removingthe present
dispute as tu the scope ofthe TreatyJi.omthe Court Sjurisdiction. . .. [TheExceptions
Clause] defines the instances in which the Treaty itselfprovides forexceptionsto the
generality of its other provisions, but itby nomeansremoves the interpretation and
application of that articlefiom thejurisdiction ofthe Court300 . . .''
The Court compares the Exceptions Clauseto the languagefound in the GATTexception to
illustrate a case where it would lackjurisdiction to decidethe issue. In the sectioncited by Iran,
298Nicaragua,Merits,Judgment, I.C.J.Reports 1986, para.282(emphasis added).
299
Reply,para.7.69(a).
300Nicaragua,Merits,Judgment, I.C.J.Reports 1986,para.222(emphasisadded).the Court says nothing about the degreeof latitude grantedto a party invokingthe "essential
security interests" exception.
4.34 Notwithstanding Iran's effortsto argueothenvise, Nicaraguadid not lay out purely
objective criteria by which invocationsof ArticleXX,paragraph l(d) may beevaluated. In fact,
the Court laid out no specifictest outsidethe generalapproach that itwould "assesswhether the
risk run by these 'essential securityinterests' is reasonable, andsecondly,whetherthe measures
presented as being designedto protect these interests are not merelyuseful but'necessa~y~~~."'
Eventhis general approach suggestsdiscretion of the Partyinvokiig the ExceptionsClause, as it
suggests looking at the basis fora Party's invocation ofthe provision.
4.35 As noted above,the Court inNicaraguareviewed ArticleXX,paragraph 1(d)on the
basis of the specific facts at issueinthat case. Itexarnined,for instance,whetherthe party
invokingthe provision made contemporaneousstatements supporting itsclaim beforethe Court
that its measures were focusedon "essential securityinterests302."Similarly,itqueried whether
the Stateproduced evidenceshowingthat it believedits measures tobe necessaryat the time they
weretaken303.Nowhere doesNicaraguasuggestthat a 'purely objective' standard was applied.
301Ibid.,para.224.
302Ibid.,para.281.
303Ibid.,para.282.Far from it,the Court appeared to contemplatethat aPartywould exercise discretion in the
application of measures necessary to protectits essential securityinterests. CHAPTERIII
THE APPLICATIONOFARTICLE XX(l)(d) WOULDOBVIATEANYNEED TO
RESOLVEQUESTIONSRELATEDTOTHELAW OF SELF-DEFENSE
4.36 If the Court findsthatthe U.S. measures againstthe oil platforms werenecessary to
protect its essential security interests,there willbe no furtherneed for the Courtto examine
issues relatedto the law of self-defense. The United Statesbelieves that it was preciselythe
function of Article XX, paragraph 1(d)to exclude fromthe operation ofthe Treatythose
measures, includingthe use of force,that a Partymay be compelled totake to protect its essential
security interests. The Courthas embracedthis positioninthe past:
"[Alction taken in self-defence,individual or collective, mightbe consideredas part of
the wider category of measuresqualified inArticleXXI as 'necessary to protect'the
'essentialsecurity interests'of aarty304."
The United Stateswishes to re-emphasizethatthe Court'sfinding that ArticleXX,paragraph
(l)(d) excludesthe measures at issue inthis case fromthe reach of the Treaty "wouldnot exempt
them from thereach of other applicablerules of internationallaw -including limitsonthe use of
force and the law of self-defense. However, such matterswould fa11outsidethejurisdiction of
the Court inthis case, which is limitedto theTreaty305."
4.37 In this respect, the United States agreeswithJudge Koroma7sseparateopinion in
the recentjudgment of the Courtinthe Case ConcerningtheAerialIncidentof 10August 1999
304Ibid.para. 224 (referring to the ExceptionsClause inthe Treaty at issue in that case).
'O5Counter-Mernorial,para.3.40.(Pakistan v. India). Pakistan, Judge Koromapointedout, contended that thatcase involved
violations ofthe UN Charter and customaryandconventional internationallaw, thereby
rendering the disputejusticiable. JudgeKoromaconcisely expressed theflawin such reasoning,
in language that appliesas much to this case asto the oneto which JudgeKoroma was speaking:
"Thusformulated, there can be no doubt that theacts complained ofby Pakistan, and
their consequences, raise legal issues involvinga conflict of the rights and obligationsof
the Parties, a conflict capable of beingsettledby applying internationallaw, which the
Court,as a court of law, would havebeenentitledto do were it competentto do so
(Article38 of the Statute).
However, it isto be observed that it is onethingwhether a matterbefore the Court is
justiciable and quite another whetherthat matteris properly beforethe Court for it to be
entitledto exercise itsjurisdiction. In this regard, whetherthe Courtshould perform its
judicial functionin a given dispute orwhetherit should adjudicate such a dispute on its
meritsdepends entirely on the consentof the parties, which they musthave given priorto
the institution ofthe proceedings or in the courseof the proceedingsthemselves.
In other words, the issue whether thereis a conflict of legal rights andobligations
between partiesto a dispute and the applicationof international law Cjusticiability)is
different from whether the Court hasbeenvested with the necessaryauthority by the
partiesto a dispute to apply and interpretthe lawin relation to thatdispute. The Courtis
forbiddenby its Statute andjurisprudencefromexercising itsjurisdiction in a casein
which the parties have not giventheir consent. ... As Judge Lachs stated in anothercase
which came beforethe Court, suchjudgment should notbe seenas an abdication ofthe
Court's function, but rather a reflectionof the system within whichthe Court is called
upon to render justice306."
306Case ConcerningtheAerial Incidentof IO August 1999 (Pakistanv.India) (Jurisdiction), separate
opinion ofJudge Koroma, 21June 2000.
140 PART V
U.S. ACTIONSAGAINSTTHE OIL PLATFORMSWERE LEGITIMATE ACTIONS IN
SELF-DEFENSEUNDERARTICLE 51 OFTHE UN CHARTER
INTRODUCTION
5.01 The United States demonstratedinthe previouspart of this Rejoinderand in its
Counter-Mernorialthat its actions againstthe oil platformsfa11squarely withinthe exception
from the Treaty'soperation providedby ArticleXX,paragraph l(d). Consequently, itis
unnecessary for the Court to proceedto an examinationof whetherthe U.S. actions also were
consistent withthe applicable rules on the use of force in self-defense.
5.02 In the event that the Courtwereto find that theU.S. actionsdo not fa11withinthe
scope of ArticleX, paragraph l(d), then the United States submits thatsuchactions were not
wrongful sincethey were necessaryand appropriateactionsin self-defense. Accordingto its
Memorial, Iran agrees with this customaryule307.The draftof the International Law
Commission's articles on state responsibilityreflects customarylawon this point:
"Thewrongfulness of an act of a Stateis precludedif the act constitutes alawfulmeasure
of self-defencetaken in conformitywiththe Charterofthe United Nations308."
Any actions ofthe United Statesdeemedto be incompatible with ArticleX of the Treaty would
not be wrongfulby the operation ofthis principleof customary international law.
307See Memorial,para.4.11.
308Articl22,Draft articles on State responsibility, Reportof the International Law Commission on the
work of its2d session2000, Doc.Al55110,p. 129. 5.03 As the U.S. Counter-Mernorialdemonstrated,U.S. actionsmetthe substantive and
proceduralrequirements of Article 51ofthe UN Charter: The United Statesresponded in a
limited, restrained wayto Iranianarmed attackson its ships, after which suchactions were
reported immediately to the Security Council. The actions taken in self-defensewere necessary
for the defenseof U.S. shippingand proportionate to theIranian attacks. Asthe U.S. actions
were aimedat defending and protectingU.S. shipping,ratherthan punishingIran for its illegal
attacks on U.S. and other neutral shipping,these actionsfa11well outsideany reasonable
definition ofreprisals.
5.04 In this Rejoinder,the United States further demonstratesthat its actions in self-
defense againstthe oil platforms were fully consistent with Article 51. Followingthis
introductorychapter,'the United States shows that(1) each of Iran's armedattacks on U.S.
vessels was an "armed attack"underArticle 51 of the Charter, initiatingthe U.S.right to take
action in self-defense; (2) the U.S. actions werenecessaryin order to defendU.S. ships against
Iranian attacks;and (3) the U.S. actions were proportionate responsesin self-defenseto Iran's
attacks.
5.05 The self-defense issues presentedinthis case raise mattersofthe highest
importanceto al1members of the international community. As PresidentGuillaume recently
declared in a different case:
"Ledroit de légitime défense proclamé par la Charte des Nations Uniesest qualifiépar
celle-cide droit naturel. L'article 51de la Charteajoute qu'aucunedisposition de la
Chartene porte atteinteà ce droit. 11en est de même à fortiori dudroit coutumier ou du droit conventionnel. Cette solution s'explique aisémentc ,ar tout systèmede droit,quel
qu'il soit,ne saurait priver l'unde sessujetsdu droit de deféndresa propre existenceen
assurant la sauvegarde de ses intérêts vitaux309."
In a similar vein, it has been submittedthatthe rightto self-defenseis, like the general
prohibition on the use of force,a "peremptory rule" of internationallaw3"
5.06 The "inherentright of individual orcollectiveself-defense"remains today a pillar of
internationalsecurityand world order,a right preservedand unimpaired by the Charterand
confirmed by Statepractice. It scarcelyneedsto be saidthat, if the Court finds it necessaryto
pass upon the issues of self-defensepresentedby Iran in the presentcase, the ramifications for
internationalsecuritymust be carefully considered. In the presentstate of international relations,
the right of self-defenseserves a vital functionin deterringand suppressing international
violence and lawlessness, especially on thehigh seas. Iran's cal1for artificial and unreasonable
limitations on the right of self-defensenot only would havesignificantimplicationsfor every
State's abilityto defend itself againstarmedattacks (includingby naval mines and over-the-
horizon missiles) but also would emboldenwould-beaggressorsto manipulate such rules to their
own benefit. To the extent that international lawseeksto regulatea wide range of illegitimate
309"The right of self-defense proclaimed bythe Charterofthe UnitedNations is characterized by the
Charter as natural law. But Article51adds that nothinginthe Charter shall impair this right. The same
applies afortiori to customary law ortreaty law. This conclusion iseasily explained, for no system of
law, whatever it may be, could deprive one of its subjectsof the rightto defend its own existence and
safeguard its vital interests."gality of the Threat or Useof Nuclear Weapons,Advisory Opinionof
8July 1996, separate opinion of President Guillaume,I.C.J. Reports 1996, p. 290.
3'0See "Reportof the International LawCommission on thework of its thirty-second session, 'State
Responsibility,"' 1980 YearBook oftheInternationalLaw Commission,vol. II, part II,p. 58.uses of force, such as Iran's continuing armed attacks,it must allow for necessaryand
proportionate self-defense against such attacks. Otherwise,the law will lacklegitimacy and will
not function to preserve internationalpeace and security.
5.07 In this light, the United States must underscore at theoutsetthe artificial and
sweepingnature of Iran's claims. As both parties agreeinthis case, the lawof self-defense
consists of essentially two setsof rules -those governingthe initiation of theright of self-
defense, and those establishing how forcein self-defensemay be employed. Iran seeksto render
the lawmeaningless on both counts. Because Iran'sparticularmethod of sneak attacks on
neutral vessels left States withpractically no opportunityto bring a halt to a specific attack while
it was occurring, Iran's legalcontentions would serveto immunize such attacks from responses
in self-defense. Iran challengesthe Court to confirmIran's claim thatin a situation of continuing
armed attacks,through the use of unmarked naval mines andover-the-horizonmissiles, a target
Statemay not act in self-defense. Iran's claimhas no merit.Article 51cannotlead to the self-
serving result propounded by Iran,whereby self-defensewould rarely if everbe available to a
State even "ifan armed attackoccurs". CHAPTER 1
IRAN'S ARMED ATTACKS ON U.S. VESSELSGAVEFUSETOTHE FUGHTOF THE
UNITEDSTATESTO TAKEACTIONINSELF-DEFENSE UNDERARTICLE51
5.08 The full picture of Iran's patternof illegalattacks on U.S. and other neutral ships,
including the attacks oBridgeton, SeaIsleCity a,dthe USS SamuelB. Roberts underscores
the vitalecurity interests at stake for the UnitedStatesand the ongoingthreat Iran posed to the
United States,which are directly relevant to a legalassessmentof the measuresn by the
United States in self-defense3". Examinationof Iran's patternof attackingU.S. and other neutral
shipping demonstratesthat the specificIranianmissileand mine attacksat issue were "armed
attacks" on the United States under Article 51andthatthe U.S. response met al1applicable rules
governingthe exercise of the right of self-defense.
5.09 The persistent threat of Iran's attackstbe overstated. Between 1984and
1988,Iran employed force against neutral commercialshippingtransiting the Gulf, particularly
those ships calling upon ports in Kuwait and SaudiArabia312.Iran acknowledged that it did so3I3.
Iran laid mines in international waters throughout thisperiod, and on 21September 1987,the
United Statesapprehended an Iranianvessel,theIranAjr,in the act of laying mines on the high
'1SeeCounter-Memorial,paras.4.08-10 (discussingthe requiremthatself-defense mustbe assessed
onthebasisof al1of thecircumstancessurrounditheuseof self-defensive force).
'"SeeCounter-Memorial,paras.1.01-1.78;seealsosupra,Par1.
'1Nonvay cable,Exhibit198.seas. Iraniangunboats and armedhelicopters launchedregular attackson neutral shippingfrom
the oil platforms. Iran did not limit its attacks to shipscarryingwar materielor to ships refüsing
Iranian search-and-visit requests. Iran launched missilesagainst neutraltargets in Kuwaiti
territorial waters, where largenumbersof neutral oiltankers could be found intransit to or from
Kuwait, throughout 1987. TheUnited Stateshas presentedconclusiveevidenceofIran's
strategy of attacks on U.S. and otherneutral shippingduringthe period atissue inthis case, and
has shownthat the international cornrnunity regardedIranian attacksas a seriousthreat to
international security314.
5.10 Neither should the gravity of Iran's attacksbe minimized. Iran's attacks againstthe
freedom of commerce and navigationin the Gulf were aimed at neutral Statesto endanger their
security interestsand to forcethemto cease any economicrelationshipwith Iraq. While Iran's
expert commentsirrelevantly that Iran's attacks"accounted for farless damagethan those
mounted byIraq," even he cannotavoid the conclusionthat Iran's attacks "couldbe explained as
an effort toput pressure on those countries" having aneconomicrelationshipwith Iraq3''. Iran's
discussion of neutrality duringthe Gulf War can bestbe understood inthis light as an attemptto
justie its attackson neutral shipping,including U.S.vessels316.Sucha contentionhas no legal
l4See, e.g., Counter-Memorial,paras.1.09-13; supra,para. 1.11.
315Freedman ReportR , eply, VolumeII,p. 14.Freedman'ssingle citationforsuchinformationis a
periodicaldated1985,well before the substantial increasienIranianattacksin 1987.
3'6See Reply,paras.2.27-2.41, 7.4-7.12(especially para.7.9,whereIrandiscussesanalleged,but
unsubstantiated,"extraordinary changeof trade patterns tothe advantageof Iraq"duringtheGulfWar).effect on this case; indeed, Iran has no legallyvalidjustification or excusefor its illegal uses of
force.
Section 1. The "ArmedAttack" RequirementofArticle 51 of the UN Charter
5.11 Giventhe factual background in this case, substantiatedinthe U.S. pleadings, the
U.S.actions in self-defensefa11neatly into theschemeof Article 51ofthe UN Charter. Article
5 1of the UN Charter safeguardsthe customarylawof self-defense:
"Nothing in the present Charter shallimpairthe inherent right of individualor collective
self-defence if anarmed attack occurs againsta Memberof the United Nations until the
Security Council has taken measures necessaryto maintain international peace and
security. Measures taken by Members in the exerciseof this right of self-defence shallbe
immediately reportedto the SecurityCouncil andshall not in any way affectthe authority
and responsibility ofthe Security Council underthe present Charterto take at any time
such action as it deems necessary inorderto maintain or restore international peaceand
security3".'I
The first fifteen words of Article 51assure Members ofthe United Nations that the Charter does
not diminishtheir security but preservesthe customaryinternationallaw of self-defense3'*.The
Iran continues to present irrelevant and divertingargumentsrelated to the Iran-Iraq War of 1980-1988.
Iran'spurpose Iiereis unclear, since the United States wasclearly a neutral with respect to that conflict.
Iran's attackson U.S. ships were armed attacks, triggeringthe right of self-defensender Article 51.
Iran's discursive arguments regardingthe conduct ofneutralsduring the Iran-Iraq War cannot alter the
fact that Iran's armedattacks necessitated the U.S.resorto self-defense.
317Article 51,UN Charter.
318See, e.g.Myres McDougal and Florentin0 Feliciano, TheInternationalLaw of War: Transnational
Coercion and WorldPublic Order, p. 235 (1994) ("It isof common record inthe preparatory work on the
Charter that Article51was not drafted for the purposeof deliberately narrowingthe customary-law
permission of self-defense against acurrent or imminentunlawful attack by raising the required degree of
necessity.") See also Nicaragua, Merits, Judgment, I.C.J.Reports 1986, para. 194("With regardto the
characteristics governingthe right of self-defence,incethe Parties consider the existence of this right toexpansive phrase ("Nothing .. .shall impair") carries a reassuring quality, without the
restrictiveness pleaded by Iran319.The negotiating history of the Charter demonstrates further that
Article 51, which was not proposed as part ofthe original Charter draft prepared at Dumbarton
Oaks, was developed specifically to reassure States, particularly those involved in collective
security arrangements, that the Charter would not adversely affect their right to defend
them~elves~~'.
5.12 The right of self-defense is available to a State "ifan armed attack occurs" against
it. Article 51 saysnothing further about the requirement of an "armed attack." Whether an
armed attack occurs must be evaluated on a case-by-case basis, looking at the totality of the
circumstances governing atthe time321.The responsibility to determinethe occurrence of an
be established as a matter of customary international law, they haveconcentrated on the conditions
governing its use"); Yoram Dinstein, War,Aggression andSelf-Defence,p.182 (1994).
'19Reply, para. 7.13(1) (". ..the right ofself-defence as recognizedby Article 51has to be restrictively
interpreted").
320See United Nations Conference on International Organization,Documents,Vol. VI, p. 459(notingthat
under Article 2(4) of the Charter, "[tlhe use of arms in legitimateself-defenceremains admitted and
unimpaired."). See also Stephen M. Schwebel, "Aggression,Intervention, and Self-Defense in Modem
International Law," in Justice inInternationalLaw, p. 581(1994)("The purposeof Article 51was not to
restrict the right of self-defense but tosurethat regional organizations couldact in self-defense under
the Charter despite the operation of the [Security Council] veto").
'" It is recognized that the totality of the circumstances must be examined in cases involving questions
concerning the use of force. See, e.g., Cor- Channel,I.C.J.Reports 1949,p. 31("Having regard,
however, to al1the circumstances of thecase, as described above,the Court is unable to characterize
these measures taken by the United Kingdomauthorities as a violation of Albania's sovereignty.")
(emphasis added) .armed attack restswith the victim State,since by its verynature an "armedattack"requires the
victim Stateto evaluate the threat to its securityandthe actions it must taketo defend it~elP~~.
The SecurityCouncil retains its responsibility tomaintaininternationalpeace and security, a role
recognized inthe context of Article 51'spreservationofthe right of self-defense. As with the
standardsunderArticle XX,paragraph 1(d) of the Treaty,anyreview shouldaccount for the
victim State'sassessment ofthe overall situation at the time ittook action in self-defense.
5.13 Al1ofthe elementsof self-defense -the occurrenceof an "armedattack" as well as
the requirementsof necessity and proportionalityinthe exerciseof the rightof self-defense -
musttherefore be evaluated in lightof the governingcircumstances,and informationavailable to
the victim of anarmed attack, atthe time the measuresweretaken. As oneleading cornmentator
has written: "The invocation of the right ofself-defencemust be weighedonthe basis of the
information available (and reasonably interpreted)at the momentof action,without the benefit of
post factum ~isdom~~~.A " ny assessment must take accountofal1of the circumstances
322See RosalynHiggins, TheDevelopmentof InternationalLaw through the Political Organsof the
UnitedNations, p.205(1963) ("Temporarilyt,hen,a statemustbejudge in itsowncause.").This
follows logicallyand alsofrom the languageofArticle 51. IfArticle51 wasmeanttobeevaluatedsolely
by a thirdParty,itshouldhavebeenappropriatelyworded to reflectsuchanintention.Suchan intention
isbeliedbythepreservationoftherightofself-defense "untitheSecurityCouncilhastakenmeasures.
Il
"' YoramDinstein, War,Aggression andSelf-Defence, pp.182, 191(1 994). Seealso MyresMcDougal
andFlorentin0Feliciano, Law and Minimum WorldPublic Order,p. 218(1961);Counter-Memorial,
paras. 4.08-1.surrounding the actions taken in self-defense.Suchan assessment demonstratesthat Iran's
actions were "armed attacks"on the United Stateswithin the meaning of Article 51.
Section 2. Iran's Armed Attack onSea Isle Ciiy
5.14 On the morning of 16October 1987,Iran launchedits secondmissile attackin two
days, its seventhinjust over amonth, striking the U.S. flaggedSea ICit oon after entering
Kuwait harbor. The ship's captain and a seamanwere permanently blinded, others were
seriously injured,and the ship itself was extensivelyda~naged~Y.et Iranseeks to present its
missile attackonSea IsleCit ys if it were an act of nature,oneto be completely isolatedfrom
Iran's overall strategyof attacking neutral~hipping~W. hile it isdifficultto imaginehow such
an elementary factas a missile attackcan be claimed "not [to]arnount toan armed atta~k~~"ish
is precisely what Iran argues.
5.15 Iran invitesthe Court to characterizethe missile attack onSea Cite ys not
amounting to an "armed attack" triggeringthe right of self-defenseerArticle 51. Itargues
that missile attackson singlemerchant shipsdo not amount to "armedattacks"on the ships' flag
324SeeLetterfromCapt.TurkialTurki, General SuperintendenKtOTC, Exhibit89.
325SeeReply,para.7.33 ("Ithecaseofthe Sea Isle Ciytheonlyclearly establishfactisthatitwas
hitby amissile.")See alsoReply, paras7.19,7.30-33.
326Reply,para.7.36.State; that an "armed attack"onlyoccurs when the objectactuallyhit is "specificallytargeted";
and that an attack on a ship, and thus its flag State, in athird State'sterritorial waters does not
amount to an "armed attack" uponthe flag State but onlyupon the territorial State. Each of
Iran's positions is specious.
1. Small-ScaleAttacks Can Be "ArmedAttacks"
5.16 Article 51of the UN Charter contains no qualificationsregardingthe size of "armed
attacks": itsplain languageisthat the right of self-defenseis subjectto the occurrenceof an
armed attack. The scale of the attack is at issue, inmostcases,not in the legal characterization as
an "armed attack" but ratherin an exarnination of the proportionalityof the actions taken in self-
defen~e~~'A . massive illegaluseof force might requireone kind of response in self-defense,a
small illegal use of force another. Ineither case, however,the question would not bewhether the
precipitating use offorce was an "armed attack" forthe purposesof Article 51but whether the
response metthe customary internationallaw requirementsof necessity and pr~portionality~~'.In
327InNicaragua,theCourt,for instance,wasconcernedwithwhethercertain kinds of non-forcible
activities-suchas "assistancetorebels in theformoftheprovisionofweapons orlogisticalor other
support",Nicaragua, Judgrnent,para.195 -couldbecharacterized as"armedattacks",notwith whether
thescaleof suchactivitiesprevented them frombeingcharacterized as "armedattacks".
328SeeYoramDinstein,War,AggressionandSelf-Defencep ,p. 182, 192(1994). ("An armedattack,
justifyingself-defenceasa responseunderArticle 51,neednottake theshapeofa massivemilitary
operation.... Thecriteria[discussed in theNicaraguacase]of 'scaleandeffects7... areof immenseany event, Iranian attacks were unquestionablylethal, dangerous and serious,inflicting extremely
serious damage to the ships attacked, leavingat least63 people dead and 99wounded.
5.17 Iran contendsthat only "massive"attacks on a State'smarinefleet amount to anned
attacks under Article 51329.Sucha rule has no basis inthe law of self-defense. Moreover,its
adoption would only leadto confusion in the law. For instance, if "smallattacks"are not "armed
attacks", at what point alongthe continuum from small-to-large doattacksmerit characterization
as "armed" under Article 5 l? At whatpoint would several small attacks, spreadacross time,
become "armed attacks"? In other words, atwhatpoint alongthe continuumwould aState's
"inherent right" of self-defense vest?
5.18 Such questions underscore the difficultyof applying a restrictive interpretation to
Article 51. Article 51requires not rigidrulesbut a contextual, case-by-caseapproach,exarnining
al1of the circumstances surroundingthe "armedattack" andthe actiontakenin self-defense.
practicalimport. Butthey are relevant in appraisingwhethera counter-action taken inself-defense,in
responsetoanarmedattack,islegitimate.Theydonotaffect thedetermination whetheranarmedattack
hasoccurred. In reality,thereisnocausetoremovesmall-scalearmedattacksfromthespectrumof
armedattacks.") .
329See Reply,para. 7.38 ("... onlymassiveactsof violence against the merchantshippingof a State,
attacking wliolefleets,wouldamounttoanactofaggression."). 2. Iran's AttackOn A SingleMerchantShip Was An "Armed Attack"
On TheUnited States
5.19 Iran argues that an attack againstan individualmerchant ship "may be an
infringementof the rights of the flag State,but it doesnot constitute an armed atta~k~~O . ..." Iran
argues thatthe evaluation whether anarrnedattack occurredmust be "askedand answered . . .
only for eachsingle incident whicho~curred~~'." It wants the Courtto examine the facts of this
case in individual compartments,to look at eachtreebut not the forest. Yet Iran's argument
would notonly immunize its own attacks, it would licenseal1manner of small, recurrentbut
deadly uses of force; if accepted, it wouldprovidea rightfor any attacking State freely to
conduct sneak attacks beyond the reach ofanyviable legalregime of self-defense. The
fundamental inadequacy of this conclusionis obvious,but Iran attempts to support itsclaim by
relying onthe UN GeneralAssembly's DefinitionofAggre~sion~~~ .etthe Definition of
Aggressioncannot hold the weight Iran assignsit, forthe Definition doesnot purport to define
armedattacks;the Definition concems onlythe questionwhat constitutesaggression. Thus,
Iran's arguments are inappositeto the situationbefore the Courtin this case.
330Reply,paras.7.37-41.
33'Reply,para.7.22.
332Reply,paras.7.37-7.41. See UnitedNations SpecialCornmitteeon theQuestionof Defining
Aggression, reprinted in13 InternationalLegal Materials p.713. 5.20 Article 3(d) of the Definitiondefines as an act of aggression"an attack by the armed
forces of a Stateon the land, seaor air forces, marineand air fleetsof another State." It does not
define an "armedattack" but an "actof aggression". Aggressioncarriespolitical, legal and moral
implications which do not necessarilyapply to al1formsof armedattacks. As Iran itselfgoes to
pains to pointout, "armed attack" and usesof force contraryto Article2(4) of the Charterare not
identi~al~~~a,principle of distinction equally at issuehere. Article6 of the Definition, moreover,
states:
"Nothingin this definition shallbe construedas in anyway enlargingor diminishingthe
scopeofthe Charter includingits provisions concerningcasesin which the use of force is
lawful."
Commenting upon the Definitionof Aggression andArticle 51,one scholarfound that:
"Thequestion whether an attackupon a merchantship canconstitutean armed attack
upon the flag state forthepurposes of Article 51must thereforebe answered by
interpretingArticle 51inthe light ofthe relevantpractice, of whichthe Definitionis only
a part. There is no indication that Article 51,which doesno more than preserve aright
describedas 'inherent',was intended to deprivestates ofthe right to use force to protect
theirmerchant ships whenthose vessels werethe victims of unlawful attacksby the
forcesof other ~tates~~~."
In other words,a determination thatan attack on a merchantshipis an armed attackunder Article
5 1calls not for application of the Definitionof Aggressionbut foran evaluation ofthe totality of
333Reply,para. 7.17
334ChristopherGreenwood, Comments,in The Gulf Warof 1980-1988, pp.2 13,214 (IgeF.Dekker &
Harry H.G. Post,eds.).the circumstancesat the time of Iran's attack,justas would berequired in evaluatingany arrned
atta~k~)~.
5.21 In any event, Iran itself considered its attackson individual vessels tobe directed
againstthe U.S. fleet. The commanderof Iran'sNavyat the time, CommodoreMoharnmad
Hoseyn Malekzadegan,referredto the attackson neutralshipping as "indirectblows in particular
to theUS.Jleet, affecting both its warshipsand its merchantvessels, with minesor missiles336 ..
.." Iran's acknowledgmentofthe motive andnature ofits attacks supportsthe proposition that
suchattacksmust be considered "armed attacks"to whichthe victim Statemay respond in self-
defense. Iran'sargument would enable a Stateto escaperesponsibility for individual armed
attacks even where such attacksare part of a broaderassault.
5.22 In light of theabove, Iran's attackonSeaIsle Cit y as clearlyan "armedattack" for
the purposes of Article 51. The attack involved thefiringof a missile against a neutral ship,
resulting inserious injury and substantialdamage. Aspart of a series of attackson U.S. and
other neutralshipping, the attackon Sea Isle Cit y asevidenceof Iran's plan to harrn seriously
335Even assuming arguendo that Article 3(d) of the Definitioncan shed light onthe meaning of "armed
attack", it cannotan that onlyattacks on the entire fleetof a Statetriggerthe right of self-defense
underArticle 51. In defining the threshold for aggression,the Definition employsthe expression "marine
and air fleets," a term undoubtedly not draftedtothe entirefleet of a State. In practice, it is
doubtful that even very widespread attackswill comprisethe entire fleet of a St,ate. Something
considerably less musturely initiatethe right of a State todefend itself under Article 51 if that right is
notto be nullified.
336"Radio Phone-In Program with Defense Officiais," ForeignBroadcast InformationService, 1April
1988(emphasis added) Exhibit 13.U.S. personnel, vessels and property. The attack was part of Iran's acknowledged plan to attack -
whenever possible - al1ships, regardless of nationalityor neutral status,canying cargo to or
fiom Kuwait or SaudiArabia337.It was not merely an individual attack on amerchant ship but
one part of a widespread, deliberate effort to undermine the securityofU.S. shipping inthe Gulf
through the use of anned Iran's morethan 200 attackson 31nations'vessels outside its
exclusion zone, onthe high seas and in Gulf Stateterritorial waters, were aimedat stranglingthe
free flow of commerce and navigation inthe Gulf. These attacks onneutralshipping were
condemned by the international comrnunity,which underscoredthe importance al1attach to
freedom of navigation.
5.23 Iran argues thatthe missile attack couldnot bean "armedattack"because "thereis
no evidence that the Sea Isle City was specificallytargeted339."No law supportssuch an
assertion, especially in a situation where, as in this case,the attacking Stateclearly intendsto
attack a categoryof targets in whichthe actualtarget is included. Indeed,the unprecedented
implications of Iran's argumentcannot be overstated. It wouldbe akinto arguing that an
337NorwayCable,Exhibit198.
338See "Hashemi-RafsanjanP ioliticalSermon,"ForeignBroadcastInformationService,24 July1987,
Exhibit 50.
339Reply,para. 7.36.artillerybarrageagainst a city is not an armed attackbecause it is not aimedat any specific
identifiabletarg~et~~A '.pplied to adomestic legal setting,it is akin to allowing acriminal to
shoot into a crowd, killingand injuring individuals,butelude responsibilitybecausehe did not
intendto hit a particular victim. In the international setting, it would give carte blanche to
powers with such capabilities to launchmissiles fromremote locations,withoutanyjustification
in law, anddeny responsibility, claiming that theydidnot intendto hit any specifictarget.
International law,as is the case with municipal law,cannot acceptsuch an approach. As amatter
of principle,the law does not, and could not, countenancea principleby whichindiscriminate
attacks wereimmunized while targeted attackswerethe subjectof responsibility.
5.24 Iran arguesthat the attack against a foreign-flag ship"in a foreignport [is]not an
armed attack"against the flag State341.Again, it offersno supportfor sucha claim,and no
logical or legalbasis exists on its behalf. If one concludes thatan attack on a particular vesse1
arnountsto an "armed attack"underArticle 51,there is no reason why that vessel'slocation
340Iran's attacks werealso objectionableunder the lawof armed conflict, which prohibitsindiscriminate
attacks. See,e.g.,Article 52. 1977Protocol Additionalto the Geneva Conventionsof 12August 1949,
and Relatingto the Protection of Victimsof International Armed Conflicts (Additional Protocol1),1125
UNTS (hereinafter "AdditionalProtocol1").The United States is nota party to Additional Protocol 1,
thougli it considers certain of its provisionsreflective of customary internationallaw.
341Reply, para. 7.36. See alsoReply, para.7.40.changes the characterization. Moreover,therecan be little doubtthat, dependingon the
circumstances, a missile attackon a U.S. flaggedship in Kuwaiti waterscould amount not only
to an armed attackon the UnitedStatesbut alsoon Kuwait. Yet accordingto Iran's reasoning,if
the U.S. Pacific Fleet had beenattackednot in Pearl Harbor but while visiting a neutral port,no
armed attack againstthe UnitedStates wouldhavetaken place.
Section 3. Iran Committedan ArmedAttack Againstthe USSSamuelB.Roberts
5.25 Iran labors againstthe substantialweightof evidenceandlogic to argue that its
mine attack on the USSSamuelB.Roberts did notconstitute an "armedattack"under Article
5 1342.The evidence presentedby the United States in its Counter-Memorialandin this Rejoinder
ovenvhelmingly proves that it was an Iranian-laidmine that struckthe USSSamuelB.Roberts343.
5.26 In light of the factsandthe surroundingcircumstances,it is clear that Iran's mining
of the USSSamuelB. Roberts wasan armedattackunder Article 51,initiatingthe U.S. rightto
take action in self-defense. Therecan be nodispute that attacks on warships are tobe treatedjust
like any attack on an instrumentalityof the State -that is, asan attackonthe State it~e18~~Y . et
Iran again raises specious groundsto argue thatits attacks involvingnaval minesdid not arnount
342Reply, paras. 7.42-43.
343See Counter-Memorial, paras. 1.19-1.47, 1.105-1.112;supra, paras. 1.66-1.7.1.
344See, e.g., Oscar Scliachter,InternationalLaw inTheoryand Practice,p. 152(1991). ("When an
attack occurs against a State (andwould includeinthat category attacksagainstState instrumentalities
such as warships, planes and embassies) armed force maybe usedto repelthe attack").to "armed attacks"under Article 51. Iran's first contentionisthat the minelaying couldonly be
an armed attack "ifthe mine had beenlaid specifically for thepurpose of hitting U.S.~arships~~~
. . ."This claim hardly needs tobe considered,because what Iranrequests fromthe Court is
essentially a finding thatthe targetingof warships is unlawfulbut indiscriminateminelayingis
lawful. The Corfu ChannelCase underlinedthe grave nature ofmining neutral waters, referring
to such actionsas "serious outrages346."Moreover, Iran'sviewwould tum the law of armed
conflict, whichprohibits indiscriminateattacks,on its head. Indiscriminateminelayingis illegal
whether undertaken intime of armedconflict or peace. Indeed,as this Court held inthe Corfu
ChannelCase,the prohibition againstindiscriminate use offorceis "evenmore exacting in peace
than in ~ar~~~." The points madewith respectto Iran's claimthat a missile attack must
specificallytarget aparticular objectin order to constitutean "armedattack" apply inthe
situation of minelayingas well. In any event, the evidenceinthis case ovenvhelmingly
demonstrates Iran's intention to attackU.S.vessels.
5.27 Second, Iranmakesthe novel claim that,becausenaval mines arelawful weapons,
345Reply,para.7.42. See also Reply,para.7.34 ("...attheveryleastthe mine-layingwouldhavehadto be
specificallydirectedagainsta U.S.target"to amountto an armedattack).
346Cor- Channel,I.C.J. Reports 1949,p.35.
j4'Ibid.p. 22;Nicaragua, Judgment, I.C.4 Reports 1986, para.215.their use is subject only to certainprecautionary restriction^^ A^'.awfulweaponsurely can be
employed to conduct an unlawfularmed attack. Irancannot credibly claimthat its attack on USS
Samuel B.Roberts was lawfulbecauseof its war withIraq. Thus, Iran's statementthat "laying
mines in international watersduring an armed conflictis not illegalper se349h "as no relevanceto
the issues before the Court inthis case,where the issueinvolves attacks outsidea declaredwar
zone against a neutral Statenotparticipating in an armedconflict. The fact is that Iran laid mines
in international waters againstneutral ~hippin$*~
5.28 It bears noting furtherthat Iran's miningof neutral waters wasan extremely serious
matter. In the Corfu Channel Case,the Court referredto Albania's responsibilityto notiQ
"shipping in general" of the existenceof minefieldsin its waters, an obligationbased not only on
the law applicable in armedconflictbut on "certaingeneraland well-recognizedprinciples,
namely: elementary considerationsof humanity ... the principle of freedomof maritime
comm~nication~~. '. ." The Courtstated inNicaragua that:
"in peacetime for one Stateto lay mines inthe intemal or territorialwaters of another is
an unlawful act; but inaddition,if a State laysmines in any waters whateverin which the
vessels of another Statehaverights of accessor passage, and failsto give any warning or
348Reply,paras.7.42-7.43.
349Reply, para.7.42.
Seesupra, para.1.66-1.70fora descriptionof Iran'sminingpractices.
35'CorfuChannel,1C.J.Reports1949, p.22. notification whatsoever.. . it commits a breach of the principles ofhumanitarian law
underlying the specific provisions of ConventionNo. VI11of 1 907352.ii
Iran's purposeful effort to undermine the security ofU.S. andother neutral shippinginthe Gulf
while avoiding responsibilityfor its actions surely standsin violation ofthose same "elementary
considerations". The Court's condemnationsof illegal mining underscorethe serious nature of
Iran's armed attacks.
5.29 In any event, Iran did not observe even themostbasic precautionary measures
required underinternationallaw, such as those pertaining to warning andnotification of naval
minefields. For almost a century,becauseof the extreme hazardsposed by naval mines,
international law has placed clear limitson their use. Iran ignoredese rules with lethalresults.
Inthis light, Iran's claim thatthe mine attackon theUSSSamuel B. Roberts does not amount to
an "armed attack" for purposes of Article 51takes on an evenmore egregiousquality. It should
be rejected by the Court.
352Nicaragua Judgment,I.C.J Reports 1986,para.2 15.
161 CHAPTER II
THE U.S. ACTIONS TODEFENDITSELFMET ALL APPLICABLE
RULES CONCERNINGTHE USEOFFORCE INSELF-DEFENSE
Section 1. The Elementsof LegitimateSelf-Defense
5.30 The U.S. actions againstthe oil platformssatisfied al1of the elementsof self-
defense requiredby international law. Thereis no disagreement in this casethatthe exercise of
the right of self-defense is subjectto two basic requirements: necessityandproportionality. The
Court has repeatedly held that necessityand proportionalityare principles of customary
international law, both of which applyto actionstaken in self-defense underArticle 51of the UN
Charte?53.
5.31 The United Statesalso complied with Article51'srequirementthat a Statetaking
measures in self-defense immediatelyreport themto the Security C0unci1~~~ A.sthe Court noted
in theNicaragua case, compliancewithsuchrequirementis not a "conditionofthe lawfulness of
the use of force in self-defence,"butwhen self-defenseisput forward as ajustification for certain
353See Legaliw of the Threator UseofNuclearWeapons,Advisory Opinion,I.C.J.Reports 1996, para.
41;Nicaragua,Merits, Judgment, I.C.J,Reports 1986,para.176. See alsoCounter-Memorialp ,aras.
4.21-4.22.
354SeeLetterdated 19October1987from theU.S. PermanentR . epresentativtothe United Nationtso
thePresident ofthe SecurityCouncil,UnitedNationsDocument SI19219,Exhibit100;Letterdated18
April 1988fromthe ActingU.S.PermanentRepresentativeto thePresidentofthe SecurityCouncil,
United Nations Document SI19791,Exhibit130.action, "it isto be expected that the conditionsof the Charter shouldbe re~pected~'~." The failure
to report to the Security Council "maybe one of the factors indicating whetherthe State in
question was itself convinced that it was actingin self-defen~e~'~." Conversely,the existence ofa
clear, contemporaneousand reasonedreportlaying out the bases forthe measurestaken in self-
defense is an important factor inexaminingwhetherthe State's actionswerein compliance with
the rules of self-defense.
Section2. The U.S. Responses in Self-Defense Were Necessary
5.32 The United Stateshas presentedtothe Court a clearpictureof Iran's effortsto
undermine the security of U.S. and other neutral State shipping in1987and 1988. Iran's
methods, broughtto light by the voluminous evidence inthis case, weredesignedto elude
responsibility andevade responses in self-defense:missile attacks, minelaying,helicopter
gunboat attacks,arnongothers. Iran relied uponthe victim States'perceivedinability to defend
themselves irnmediatelyagainstsuch methods. As Majlis SpeakerHashemi-Rafsanjanihimself
acknowledged: "[olf course, we will not claim responsibility for anything,for itis an invisible
shot that is being fi~-ed~~'."
355Nicaragua, Judgment,I.C.4 Reports 1986, para.200.
356Ibid.
357See "Iran warning asBridgeton beginsloading," Lloyd's List,1August 1987, Exhibit50. 5.33 Iran's arguments are,withoutexception,designedto fit neatlyinto its stealthy,one-
by-one methodof attack. Thus,Iran's contention that"[olnlyreactionto an existing, ongoing
attack constitutes self-defen~e~'~n "ot only addsa new conditionto the customaryrequirements of
self-defense. It is also anotherof Iran'sploys to avoidresponsibilityfor its special brand of
sneak attackson neutral shipping,sincethe Iranian attacksat issue in this case occurred -started,
ended, causeddamage and casualties -in but an instant, leaving no opportunityto the victim
State to respond during that briefmoment. Similarly,Iran's suggestionthat only action taken
against "amissile launching site"or "mine-layingboats" wouldbe legitimatecannot withstand
scr~tiny~~~A . rticle 51cannotbereadto require such constrictingresults, which would surely
encourage aggressors to carryoutattacksin such a manner. In a situationof armed attacksand
the explicit threat of continuingarmedattacks, Article51does not foreclosethe victim State's
right to takeother necessary andproportionate measures inself-defense.
5.34 Contrary to its assertions,Iran'sunrelenting attacksnecessarilyinfluencedtwo
aspects of the U.S. actions: thetiming ofthe U.S. responsesand the choiceof the oil platforms
as targets.
358Reply,para.7.57.
359Ibid,para.7.58. 5.35 Iran continues toargue,as it did in its Memorial, that only an "instant and
ovenvhelming necessity" couldjustify a State'sresortto action in ~elf-defense~~'T . o sustain this
argument, Iran relies on its characterizationof theU.S. actions as "anti~ipatory~~'"T. he principle
of "instant" necessity, however,hasno relevanceto this case, as the United Stateshas previously
demonstrated and will presentlyexp1ai1-1~~ M'.ost importantly, Iran purposely attemptsto obscure
the fact that this case involvesactions in self-defenseuponthe occurrence of repeated, specific
armed attackson U.S. vesselsandduring periods of persistentthreats againstthe United States.
These were not cases of "anticipatory"self-defenseinthe sense expressedby the Caroline case,
on which Iran heavily relies363.In fact, Iran's relianceonthe Caroline is notable, inasmuch as
that case involved only a singleattackwhile this case involves a continuing patternof attacks on
360Ibid,para.7.59.
361Ibid,paras.7.51-7.61("Illegalityofanticipatory self-defencerforcefuldeterrence,see especially
para.7.53: "TheUnitedStateshasfailed to give anyproofthatthis restrictivecustomarylawstandardfor
anticipatory self-defenchasbeenreplacedbyany morepermissive rule.").
362See Counter-Memorialp ,aras. 4.374.44.See also MyresMcDougalandFlorentin0Feliciano, The
International Law of War: TransnationalCoercionand WorldPublic Order,p.217(1994);John Basset
Moore,II Digest of International Lawpp.409-414(1906);RobertJennings,"TheCarolineandMcLeod
Cases,"32 American Journal oflnternational Law, p. 82(1938);MartinRogoffandEdwardCollins,
"The Caroline Incidentandthe Developmeno tfInternational Law,"16 BrooklynJournal of International
Law, p.493(1990).
363See Reply,para.7.57("Onlysuchanticipatory self-defencaes islegitimisedunderthe Caroline
formulacanbeconsidered lawful.")U.S. ships. Moreover, Caroline is inapplicablesince it involvedan anticipatory use of force,
whereas herethe United Statesactedfollowing actual armed attackson U.S. ships.
5.36 As with the generalrequirementthat actionsin self-defense must be evaluated
under the totality of the circumstances,the requirementof timeliness "should notbe takentoo
literally andwithout due regard tothe circumstancesof the particularcase364."As Judge Higgins
has suggested, a State "not ableto engage immediatelyin actionto defend itself' may
nonetheless be able to take "actionin self-defen~e~~'."Internationallaw does not requirethat a
State choose between resortingto armed force instantlyandwithout reflection, or sacrificingits
right to take prudent and considered,while still timely, defensiveaction. Instead,the lawmust
accord a Statethat has been attackedthe opportunityto investigatematters, not leastto confirm
that it has indeedbeen attacked,and bywhom. This is especiallytrue of attacks at seausing
weapons that are hidden, like mines,or that can be launchedfrom great distances, like missiles.
In such attacks,the cause of particulardamageoften may be discovered only throughcareful
investigation. Even when the identity of an attacker isknown,it will oftentake time to assemble
and instruct the forces that will carryout the response. Time willalso be required to select
targets whose incapacitation will have the necessaryeffectand yet not pose disproportionate
364P. Malanczuk, "Counterrneasures and Self-DefenceAs CircumstancesPrecluding Wrongfulnessin the
International Law Commission's DraftArticles on StateResponsibility" in UnitedNationsCodzj?cationof
State Responsibility,pp. 197,254 (M.Spinediand B. Simma,eds.)(1987). Malanczuk also wams against
"a dogmatic approach misunderstandingthe true sense of the requirementof 'immediacy.'"
365Rosalyn Higgins,Problems andProcess, p. 241 (1994).risks of collateral darnage and casualties.Requiring instantaneous response could dramatically
increase the risk of disproportionatedarnage. Suchcareand deliberation in the exerciseof
prompt self-defensedoes not impairthe defensive characterof the actions ultimatelytaken,
although their charactercan bemisconstrued(as Iran seeksto do here). As Judge Ago notedin
considering a similar type of situation:
"If,however, the attackin question consistedofa nurnber of successiveacts,the
requirement of the immediacy ofthe self-defensiveaction would have to be looked at in
the light ofhose acts as a hol le^^^."
Surely the Charter does not require "instant"responsewhere,in light of the situationas a whole,
considered deliberation wouldbe warranted.
5.37 Inthe case of boththe Iranianattacks onSeaIsle Cit ynd the USSSamuelB.
Roberts, approximately eighty hours separatedthe Iranianattacks and the U.S. actions in self-
defense againstthe oil platforms. It shouldbe recalled as well that Iran had alreadyforeclosed
any peaceful, diplomatic avenuesto bringits armed attacksto a halt. Duringthe eighty hoursof
deliberation, U.S. decision-makersneededto ascertainresponsibility forthe attack,identi@
targets actionsagainst whichwoulddefeat anddeter ongoing attacks, and formulate
proportionate measures so asnot to cause excessive damaget6 civilian objectsor ~ivilians~~'.
This relatively short period oftime providedU.S. militaryand political leaderswith confidence
366See RobertAgo, Addendum to the eighthreporton StateresponsibilityYearbookof the International
Law Commission 1980 (Vol. II,Partl), Doc. A/CN.4/Ser.A/1980/Add.l(part2), Exhibit161.
367See Counter-Mernorialp, ara.1.79et.seq.that the steps they were taking to defendU.S. vesselswere both necessary and proportionate to
the ongoing Iranianarmed attacks and the continuingthreatto U.S. security. Under the
circumstances, the amount of time thatpassed betweenIran's "armedattacks" andthe U.S.
actions in self-defense was certainlyprudent andreasonable and, therefore, well withinthe
parameters of therules related to the exerciseof self-defense.
5.38 In considering the timingofthe U.S. responses in self-defense,the Court may also
take into accountthat, throughout theperiodduringwhich Iran conductedits armed campaign
against neutral States, Iran was in continuingbreachof its international obligations related to the
use of force. EvenIran's Deputy Foreign Ministeracknowledgedthe illegal nature of Iran's
atta~ks~~~.
5.39 The United States selectedthe oil platformsas targets in order to defend U.S.
vessels effectivelyagainstthe Iranianmine andmissileattacks. The UnitedStates has
demonstratedthe role ofthe oil platformsinthe attackson U.S. and other neutral vesselsin the
Persian Gulf. Asthe Counter-Memorial summarizedtheir role, theoil platforms:
"wereused by Iran to identifyandtargetvesselsfor attack. They were part of Iran's
system of command and control,fordirectingattacks by Iraniancombat forces, and were
used as bases for attacking vessels and air~raft~~~."
368NorwayCable,Exhibit 198.
369Counter-Mernorial, para ..30.Part 1of this Rejoinder hasfullyrespondedto Iran's attemptsto misleadthe Court regarding the
functions served by the oil platforms in theIranian attacks onU.S. andother neutral ve~sels~~'.
The command, control, communicationsand intelligence functions of the oilplatforms, for
instance, enabled Iran to carry outits attacks,as they offeredIranthe opportunityto track and
identify neutral shipping passing closelybythem in internationalwaters37'.
5.40 The oil platforms were therefore military objectives, legitimatetargets of a U.S.
response in self-defense. Instructive in this respectis the definition of a "military objective"in
the 1977Additional ProtocolI to the Geneva Conventions on the Protectionofthe Victims of
War. Article 52(2) of AdditionalProtocolI provides, in part:
". .. [mlilitary objectives are limitedto those objectswhichby their nature, location,
purpose or use makeaneffective contribution to military action and whosetotal or partial
destruction, capture or neutralization, inthe circumstancesrulingatthe time, offer a
definite military ad~antage~~*."
This definition of a military objective, in particularits focuson the overallcircumstances
concerning the particularobject,parallels the lawof self-defensegenerally. In the case of the oil
platforms, the evidence in this case demonstrates that Iran made specialuse ofthe oil platforms
for comrnand,control, communications,and intelligence purposes,taking into account their
370Seesupra, paras. 1.17-1.34.
371Selected Messages from Archiveof Incoming Messages, Rostam Oil Platform,Exhibit 119.
372Article 52(2), Additional Protocol 1. The United States believes that the definitionset forth in Article
52(2) reflects customary international law.locations adjacentto international shipping routes. Equally important,the destruction ofthe oil
platforms' capability to carry out suchfunctions offered adefinite military advantageunderthe
circumstances. Thus, there wereveryspecificand compelling reasons for treating the oil
platforms as military ~bjects~~~.
5.41 Iran challenges the substantial evidencepresentedby the United States concerning
the communications, reconaissanceand other military functions undertakenby the oil platforms.
Yet Iran seemsto concede that the oil platforms' employment of radarand communications
equipment, forinstance, would causethe platforms to be characterizedas military objectives374.
5.42 The substantial evidenceof the military use of the platforms for hostilepurposes
against neutralshipping provesthatthe platforms werelawfultargets underthe law of self-
defense. In the case of the responseto the attackon Sea Isle City t,e evidence demonstratesthat
Rostam contributedto the identificationof the targets availableto Iranianmissiles375.Rostam,
for instance,relayed messages concerningthe presenceof convoys heading toward Kuwait
harbo~~~~ N.ot only did the platformmaintain a surfaceradar site for military purposes, butit
373It may be noted, additionally, that oil facilities are commonly acceptedas legitimate military objectives
for thepurposeof the law of armedconflict.
374Reply, para. 7.59 (in which Iran challengesthe assertion of a presenceon Rostam of a radar set, but
does not challengethe point that the presenceand useof a radar set for military purposeswould constitute
a threat to neutral shipping). Neithers Iran contestthe legal significance ofjhe admitted fact that
military personnel were stationed onthe platforms.
375See Counter-Memorial, paras. 1.84-1.98and supra,paras. 1.43-1.46.
376Selected Messages from Archiveof Incoming Messages, RostamOil Platform, Exhibit 119.served as the station for a contingentof military personnel andas a base for helicopterunits
employed in identifying, targeting and attackingneutralve~sels~~~.
5.43 Similarly, the Sassan andSirriplatforms helpedother componentsofthe Iranian
military identify shipping patterns and specific shipsand launch attacks on neutralvessels.
Reliable sources reported on the useof both Sassanand Sini in its attacks, includingthe use of
surface radar and helicopterlaunchfacilities and the capability to harbor smallg~nboats~~'.
5.44 With respect tothe attacks onSea Isle Cit ynd USSSamuelB.Roberts,Iran
suggests that the only lawfultargetsof responses in self-defensewouldbe "amissile-launching
site" in the former case and "mine-layingboats" in thelattef 79.The United Statesshowed
previously that targetinguchsites would have been impractical and posed greaterrisk to
civilians, and could have expandedthe levelof conflictbetweenthe United Statesand Iran380.
Yet Iran's suggestionmisconstrues and attempts unreasonablyto narrow the law of self-defense.
The consequence of Iran's argument wouldbe that, in a situation where an attackereludes an
instant response, no response in self-defensewouldbe available. Iran cites Professor Schachter's
statement that "'defensive retaliation'may bejustified when Statehas good reasonto expect a
377Seesupra p,aras. 1.21.33.
378Seepara. 1.23.
379Reply, para. 7.58.
380SeeCounter-Mernorial, para.4.34.series of attacksfrom the same sourceand suchretaliation servesas a deterrent or protective
action381."SurelyProfessor Schachterwas notsuggestingthat "thesame source"of an attackbe
construed narrowlyto refer only to particularsites,instrumentalities,personnel or weapons
involved inthe last stages of an attack. The "samesource"must refer to the entity responsible
for the armed attack at issue. Indeed,Professor Schachter himselfsaid, "[ilt does not seem
unreasonableas a rule to allow a Stateto retaliate beyondtheimmediatearea oftheattackwhen
that State has sufficient reasonto expect continuationof attacks(with substantial military
weapons) fromthe same Othenvise, a clever attackercould always ensure that the
"source" of its attack could be difficultto detect orfutile to attemptto incapacitate. Moreover,
the defender's legitimate goal isto defenditselfagainst furtherattacks, not necessarilyto
respond to the particular attacking site, instrumentality, personnelor weapons. Yet Iran suggests
that the "samesource" could onlyreferto the specific launchingsite or mine-laying boats, a
conclusion not suggested by Professor Schachter'sdiscussionnor fromthe logic of self-defense.
If selecting a different particular target willbe more likely to achievethe goal of self-defenseas
well as satisfj the requirements of necessityandproportionality,there is nothing in the lawthat
would require the victim State to choosea less effective option inself-defense.
38'Reply,para. 7.58, quoting OscarSchachter, InternationalLaw in Theoryand Practice, p. 154(1991).
382OscarSchachter, International Law in TheoryandPractice, p. 154(1991) (emphasisadded). C. THERE WERE NOPEACEFU ALLTERNATIVES
5.45 In the face of the attackson Sea Citeynd USSSamuelB.Roberts and other U.S.
shipping,the U.S. measures againstthe oil platformswere necessary actionsin self-defense to
defeat anddeter Iranian attacks, asnopeaceful alternativewas availableto the United States. As
Professor Schachterhas written, "forceshouldnot be considered necessaryuntil peaceful
measures have been found wanting or when they clearlywouldbe futile383."Iran itselfdoes not
challengethe U.S. position that "peacefulmeans could not bring an end to Iran's repeateduses of
forceculminating in the armed attacks onSea ICit ynd USSSamuelB.Roberts384."
5.46 The United Stateshas advised the Court ofnumerous diplomaticefforts it,other
countries, andthe Security Councilmadeto urge restraintupon Iran, al1ofwhich failed. One
exarnpleis emblematic of Iran's position: As the United States and Irandidnot have diplomatic
relations at the time (nor do they today),U.S. messagesto Iran were transmittedthroughthe U.S.
protectingpower, Switzerland. FollowingIranianmining incidents in the spring of 1987,the
United States urged restraint uponIran and expressedthe hope that tensions could"beresolved
ratherthan lead to further diffic~lties~~~.I"ndeed,the United States exercisedextreme restraint
38Ibid.
38Counter-Mernorial, par4.23.
38See "Messageto Iran,"UnitedStatesDepartmenofState23 May 1987,Exhibit39.by refraining fromthe use of force in self-defensefollowingthe attackon Bridgeton inJuly of
1987. Iran's publicresponse to such calls forrestraintcame shortlythereafter, when Iran's
Ambassador to the United Nations announcedonU.S. television, "ifmy country has the
intention of attacking a Kuwaiti tanker, itwill continuewith that policy,regardless of whose flag
it is~arrying~~~."
5.47 Iranchallenges the U.S. comparisonofthe response of Iraq,following its mistaken,
single missile attack onthe USSStark, forwhich it expressedregret and paid compensation, with
the behavior of Iran, which in the face of substantialevidencenow denies responsibility before
the Court forits many attack~~~'T. he issue, of course,is quite simple: Did Iran's behavior
suggest that non-forcible measures would restore the security of U.S. andother neutral vesselsin
the Persian Gulf? Iran's denials of responsibilitywere(and remain) notcredible. They
contradict evidence concerning Iran's use offorceas a political tool againstneutral Statesand
reinforced the view ofthe United States thatpeacefulalternativeswere notavailable.
Section 3. The U.S. Actionsin Self-DefenseWere Proportionate
5.48 Intaking action that was carefullycalibratedto achievethe objective of defeating
and deterring Iranian attacks, the United Statesmetthe requirementsof proportionality. Iranhas
386See Counter-Mernorial, para.1.23.Seealso "Weinbergerwarns against attacks in Gulf; Iran threatens,"
United PressInternational, 25 May 1987, Exhibit 41.
387Repiy, paras.7.46-7.47.broadenedits claims in this caseby asserting that the assessmentof proportionality musttake
into accountnot just the actionsofthe United Statesat issue inthis case (that is, those againstthe
oil platforms), but also the economicsanctionsimposedby the United States shortlyafter the
attackon Sea Isle City, variousconfrontationswith Iran inApril 1988,and "amajorIraqi
offensive on the Fao penins~la~~~.T "heseeventshavenothingto do with an assessmentof the
proportionalityof the U.S. actionsin self-defense following theattacks on Sea Isle Cify and the
USS Samuel B. Roberts.
5.49 The United Statesand Iranseemto agreethat Judge Ago's discussionof
proportionalityin self-defense presentsthe appropriate standardfor evaluating suchmeasures.
As Judge Ago said, "What mattersinthis respect is the resultto be achieved by the 'defensive'
action, and not the forms, substanceand strengthof the actionitself ... Its lawfulnesscannot be
measuredexcept by its capacityforachieving the desiredre~ult~'~." In the caseat hand,the
desired result was to defeat and deterarmedattacksby Iran and thereby protect U.S. ships
againstthe ongoing situation ofthreatsposed by Iranian actions in the GulfJgO.
388Reply, para. 7.63.
389Roberto Ago, "Addendum to the Eighth Report onState Responsibility," Yearbookof the International
Law Comnzission, 1980, Vol. II,Part One, Doc. AlCN.413181ADD.5-7,p. 60, para 121,Exhibit 161.
390See generally Letter dated 20 October 1987from President Reaganto the Speaker of the House of
Representatives and the President ProTempore of the Senate, Book II,Public Papers of thePresidents of
the UnitedStates, Ronald Reagan(1987), Exhibit 99; Letter dated 19October 1987fromthe Permanent
Representative of the United Statesof Americato the United Nations Addressed to the President of the
Security Council, United Nations DocumentSI19219, Exhibit 100. 5.50 Even under Iran's misconstructionofthe law,U.S. actionsmet the proportionality
requirement. Iran's attackswere grave,employingdeadlyweapons, inflicting serious persona1
injuries and extensive damageto U.S. ships. They werepart of a strategyof attacks against
neutral Statesexercising their rights of freedomof navigationand commercein the Gulf and
evidenced a continuingthreat of further attacks against U.S.and otherneutral vessels. In light of
the threatposed by Iran's illegal attacks,whichweredesignedto eludeeffective responses,the
United Statesadopted measures that were likelyto defeatand deter Iran'sattacks; U.S. measures
had no broader aim.
5.51 Moreover, U.S. measures were unlikelyto cause excessivedarnageto non-military
objectives or toleadto wider conflagration in theregion. The targetschosen were important
links in Iran's effort to undermine U.S.and otherneutrals'security inthe region. They contained
limited civilian personnel and infrastructure,werefar frompopulationcenters, and presented
minimal risk of civilian casualties. The damageto the oil platforms removed the military threat
they posed, but did not destroy them altogether. In sum,it is clearthat the U.S. actions were
proportionateresponses in self-defenseto the Iranianarmedattacks and continuing threat of
hostile action. CHAPTERIII
CONCLUSION: THE U.S.ACTIONSAGAINST THE PLATFORMS COMPLIED
WITH THE RULES OF SELF-DEFENSEAND CANNOTBE CHARACTERIZEDAS
REPRISALS
5.52 This Part of the U.S. Rejoinderhas demonstratedthat U.S. actionsat issuein this
case satisfied al1of the requirementsof lawfulself-defenseunderArticle 51ofthe UN Charter
and customary international law. Theactions respondedto Iranian "armed attacks" ina
necessary and proportionate way.
5.53 The rules on self-defenseare, moreover,principallydesignedto distinguish lawfùl
actions of a State to defend itselffrom illegalreprisals. A reprisal, as Iran suggests,consists of
action designed for punitivpur pose^^^ 's JudgeHiggins noted in a discussionof reprisals,
"[wlhen a state is not ableto engageimmediatelyinactionto defend itself, subsequentaction can
(wrongly)take on the appearanceof reprisals, though itis stillaction in ~elf-defenseran.I"
attemptsto portrayU.S. actionsas reprisals,but the evidencepresented to the Court showsthat
U.S. actionswere not designed forpurposesof punishrnent. On the contrary,the United States
has shownwith substantial evidencethatits actionsweretaken in self-defense,to defeatand
deter continuing Iranian armed attacks onU.S. vessels in the Gulf.
39'Reply, para7.47-7.49.
392Rosalyn Higgins,Problems and Process,p241(1994). 5.54 Indeed, Iran's argument collapseswhensubjectedtothe slightest scrutiny. It argues
that the actionsof the United States were "attackson Iran's economywhich had been planned for
a long time and for which the incidents only furnisheda desiredprete~t~~~.T "o be sure, the U.S.
actions requiredsome preplanning, as the dangeroussituation inthe Gulf had been presentedby
Iran throughout 1987. But the UN Charter doesnotpreclude contingency planningfor
responding to possible armed attacks. U.S. actionsmay havehad some marginal collateral
impact upon Iran'seconomy, but the impact wasclearlyproportionate in lightof Iran's arrned
attacks and continuing threat. By using the platforms for military operations, Iran transformed
them into military objectives subjectto attackbythe United States. The UnitedStates cannot be
held responsiblefor economic harmthat may haveensued.
5.55 Hadthe United States intendedto "sendIran a message"by damaging its economy,
why would it choose the oil platforms when itcouldhave chosento cause far more darnage to
Iran's economy? Instead of selecting central economictargets of Iran's oie lconomy, the United
States identifiedmilitary installations contributingto Iran's strategy of attackson U.S. and other
neutral shipping. To the extentthat Iran's economysuffered anydarnagedinthe course of U.S.
actions in self-defense, Iran itselfbears the responsibility,for it locatedsuch installations on
othenvise civilian oil platforms. Itcould not therebyimmunize itself from responsesin self-
defense.
393Reply,para.7.50. 5.56 Even ifthe Court foundthat theUnited States also wanted to "send Iran a message"
atthe same time it took action in self-defense,thz U.S. actions would not consequentlybe
invalidated. In the Nicaragua judgment, inresponseto Nicaragua'sclaims that the U.S.
reference to collective self-defensewas mere"pretext"to attackNicaragua, the Court rejected
just such a contention:
"In the Court'sview, however,if. .. the other appropriate conditions are met, collective
self-defencecould be legallyinvokedbythe United States,even though there maybe the
possibility of an additional motive,oneperhaps evenmore decisive forthe United States,
drawn fromthe political orientationofthe present Nicaraguan Government. The
existence ofan additional motive,other than that officiallyproclaimed by the United
States, could not deprivethe latterof its right to resortto collective ~elf-defence~~~."
Iran, however, has failedto prove its allegationthat U.S. actions were aimedat economic
retaliation or any other form of punishment forIran's illegal attacks.
394Nicaragua,Merits,Judgment, I.C.J.Reports 1986,para. 127.
179 PARTVI
COUNTER-CLAIM
INTRODUCTION
6.01 With its 1997Counter-Memorial,the United Statesfiled a counter-claimagainstthe
Governmentof Iran for violationofArticle X of the 1955Treaty. In its 1998Order, the Court
found thatthe counter-claim "isadmissibleas suchand forms part ofthe currentpr~ceeding~~~."
Iran submittedwith its 1999Reply a defense to the counter-claim. This Partresponds to Iran's
arguments therein.
6.02 As a preliminary matter, the United Statesrespectfùllyrequests the Court to note
the strikinginconsistencies betweenIran's argwents regardingthe interpretationof the 1955
Treaty withrespectto its ownclaim and its argumentswith regardto the counter-claim. For
example, in connection with its claim, Iran arguesthat it does not need to prove that U.S. actions
impeded commerce or navigationtaking place betweenthe Partiesat the time ofthe atta~ks~~~;
whereas in its defenseto the counter-claim it statesthatthe United Statesmust prove that each
ship was engaged in commerceornavigation betweenIran andthe United Statesat the time of
the Iranianatta~k~~~S .imilarly,with respect to its own claim, Iran arguesthat Article X,
-
395OilPlatforms,Counter-ClaimO, rderof 10 March 1998,I.C.J.Reports 1998,para.46.
396Reply, paras6.44 -6.57.
397Reply, paras.10.1-10.44.paragraph 1"prohibits anyaction that might prevent or impede commercein any way
whats~eveIj~~," while in its Reply it insiststhat a U.S.military vessel engaged in escorting U.S.
merchant commercial vesselshas nothing to dowith U.S. commercial inter est^^^ ^.ith respect
to its own claim, Iran contends that Iraniancrudeoil extractedat certain oil platforms, CO-
mingled with other Iranianproducts, shippedto the Mediterraneanand northwest Europe, off-
loaded and CO-mingledwith other cmde oil,transformedat a refinery into refined petroleum
products, and then loadedont0 a vessel thatmay or may not go to the United States, is deemedto
constitute "oil commerce between Iran andtheUnited States," sufficientto bring the attacks on
three specificoil platforms withinthe purview of Article X, paragraph14". Yet, in connection
with the counter-claim, despite Iran's admissionthat"[tlherewas substantial commerce between
the two States during the relevant period,"Iranarguesthat the counter-claimfails because the
United Stateshas allegedlynot established that specificIranian attacks or specific Iranian mines
harmed specific vessels carrying specific productsdirectlybetweenthe two States4''.
6.03 As described in Part IIIabove,the United States submits that Iran's interpretationof
Article X, paragraph 1,is unsustainably broad, andthat the United States did not breachthat
provision in its attacks onthe oil platforms. TheUnited Statesfùrther submitsthat, even under
398Reply, para.6.41.
399Reply,paras.10.37-10.38.
400Reply,paras. 3.22-3.30.
40'Reply, para.11.5.its appropriately narrow interpretationof the provision advancedin Part III, Iran violated Article
X, paragraph 1,inrespect of its ongoingmilitary actions in 1987-1988that impeded "freedomof
commerce and navigation" between the United States and Iran within the meaningofthat
provision. To theextent that the Courtadopts Iran's broad interpretationof Article X, paragraph
1, of course, such an interpretationwould require a findingforthe United States with respectto
this counter-claim.
6.04 This Pari first will reviewthe facts givingrise to the counter-claim and supporting
the U.S. claim fordamage doneto U.S. flagged and U.S.ownedvessels, as well as to U.S.
owned cargo and U.S.personnel. Next,it will showthat Iranviolated ArticleX, paragraph 1,
both under its own interpretation of that provisionas describedinits Reply andunder the
appropriately morenarrow interpretationof that provision as informedby Article X, paragraph 5.
It will then refute defenses advancedby Iran with respect to its illegal conduct. Finally,it will
preview the discussionof damagescausedby Iran's breach,whichis reserved to be discussed
more fully in the future. CHAPTER1
IRAN'S ILLEGAL ATTACKSONNEUTRAL SHIPPING
6.05 As describedmore completely inthe Counter-Memoria140a 2nd above, Iran attacked
over200 vessels from 31neutral countries duringthe period 1984-198S403. Among the vessels
attacked werethree U.S. flagged vessels, at leastsixforeignflagged, U.S. owned, vessels and a
significant numberof U.S. operated vessels404.Someofthe vessels attackedwere canying U.S.
owned cargo405.
6.06 The Iranian attackson some of thesevessels overthe course ofjust one year are
described belowin chronologicalorder.
On the morning of 24 Juiy 1987, the U.S flaggedsteam tanker Bridgeton struck a mine
laid by Iran while it was en route fromEuropoort,Netherlands, via Fujairah Anchorage,
402Counter-Memorial, paras. 1.1- 1.127.
403"VesselsReported to Have BeenAttacked and DamagedDue to Acts of Hostility by the Iraqis and the
Iranians in the Gulf Area SinceMay 1981 ",Lloyd5 MaritimeInformation Services,Exhibit 9.
4"See Map 3; The U.S. reservesthe right to further developal1pertinent facts and arguments regarding
U.S. operatedvessels. Iran attackednumerous U.S. operatedvessels. For example, Grand Wisdom,
attacked byIranian frigates on 7November 1987,wasmanagedby Teekay Shipping of Long Beach,
California,see "GunboatattacksGulf shuttletanker," Lloyd'sList, 7November 1987, Exhibit 233; Stena
Concordia, attacked by an Iranian frigate 27 June 1987and22 December 1987,andStena Explorer,
which struckan Iranian mine 19June 1987,weremanagedby Universe Tankships, incorporated in
Delaware. Seedeck logs ofStena Concordia from 22 December 1987and 23 December 1987,Exhibit
233; deck log of Stena Explorer from 19June 1988,Exhibit233.
405Texaco Statement, Exhibit 211;Esso Demetia bills of lading and invoices, Statement of John P.
Glennon,(hereinafter "Exxonstatement"), Exhibit234. United Arab Emirates to Mina al Ahrnadi, Kuwait406.When the ship struck the mine, there
was a "heavy explosion fonvard followed by heavy shockwave and vibration throughout
the ship," as described by the Master's contemporaneous notes in the deck log407.The
blast lefi a gaping hole in the vessel's hull, necessitating 150tons of steel repairs408.
On 10August 1987,an Iranian mine blew a one-meter wide hole in the Panamanian
owned, U.S. bareboat chartered,Panamanian flagged Texaco Caribbean409. The force of
the explosion blew a hole in the vessel's side shell plating above and below the water line,
causing oil to spi11into the sea. As a result of the shellplate darnage, the vessel took on a
five-degree list to the starboard side4'0.When she was hit, Texaco Caribbean was laden
with a cargo of Iranian light crude being carried from Larak Island Terminal, Iran to
Rotterdam, Netherlands, 8000tons, or approximately 57,000 barrels, of which spilled
into the Gulf of Oman411. The crude oil was owned by Texaco, In~.~l'.
406Statement of Norman Hooke, Exhibit 10;"Mined tanker prompts U.S.Navy review," Lloyd'sList, 25
July 1987,Exliibit235.
407Kuwait Oil Tanker Company letter, Exhibit 45.
408Ibid.; See also Counter-Memorial map 1.6.
409Texaco Inc. is incorporated inDelaware, U.S.A. Basedon information receivedafier the filing of the
Counter-Memorial,the United States now asserts that TexacoCaribbean was notowned by Texaco, Inc.
but instead was chartered under a bareboat charter arrangement. Underthe bareboat charter arrangement,
the vessel was delivered to a wholly owned subsidiary of Texaco Inc. withoutcrew andTexaco was
responsible for the operation of the vessel including its crewing, provisioningand repair. Texaco
Statement, paras. 1,3, Exhibit 211;"Tanker HitsMine at Gatewayto the Gulf," Lloyd'sList, 11August
1987, Exhibit 236; "Iranian Influence MinesAdd to Threat in Gulf,"Jane's Defense Weekly,22 August
1987, Exhibit 236.
410Excerpts from Statement of General and Particular Damage and P and 1Claim forTexaco Caribbean,
Exhibit 169.
411Texaco Statement, para. 4, Exhibit 211; Statement of Norman Hooke, 27 February 2001 (hereinafter
"Lloyd'sStatement"), Exhibit 240;"TankerHits Mineat GatewaytotheGulf,"Lloyd'sList, 11August 1987,
Exhibit 236.
4'2Texaco Statement, para. 4, Exhibit 211. lranian Attacks
* on US Shipping
@ Bridgeton @ Esso Freeport
@ TexacoCaribbean @ Esso Demetia
@ Sungari @ Diane
@ USS Samuel B. Roberts
O 1O0 200Kilometers
I 1 I
O 50 100Nautical Miles
i I I I
BandaArbbas
,
Gulf of Oman
nodefined \\
\ bwndary . --\ .
\ 7,
'\'34 U~itecfArab
''%, EMI~ 2~2%~~
BoundsryrsprsssntallonisLloN,orweganShp Owner'sAssocratron, '% cls~lairl
noneccauthontahveGeneralCounulofBntishShrpprnga,ndUSNavyrecor'3
MAP 3 On the morning of 15October 1987, the U.Sowned, Liberian flaggedSungari was struck
by an Iranian missile in itsNo.1starboardtank4I3. Accordingto the Master's
contemporaneous notes inthe deck log,the missile caused:
"[a] massive explosion and instantaneousrelease of blazing crude oil on to sea.
Shortly aftenvards the flarneshadcompletely engulfed the portbow and entire
starboard sideand were spreadingrapidly. The crew deemed itprudent to
abandon ship leavingthe 2nd mateand Oilerto jump overboardand swim for the
boat4I4."
Sungari was hit whileat anchor 10miles off Mina alAhmadi, Kuwait,partially loaded
with crude oi1415I .t was disposed for scrapin April 1 98S416.
Oneday later, on 16October 1987, U.S.flaggedmotor tankerSea Isle City was stmck by
an Iranian cruise missile while nearMinaal Ahmadi4". The missilestruck a large pump
room ventilator on the starboard side andproceeded intothe accommodation block and
the engine room. The explosion causedextensivedamageto the bridge; the Captain and
his personnel on the bridge were injuredby flying glass from the bridgewindo~s~'~.The
413The Sungari was owned by OMI Sungari Transport Inc. incorporated in Delaware, U.S.A., Statement
of Fredric S. London (hereinafter "OMI Statement"),Exhibit 237; OMI Certificate of Incorporation and
Sungari Certificate of Ownership and Encumbrance, Exhibit 237; Statement of Norman Hooke, para. 26,
Exhibit 10;"Tanker is Hit in Iranian Missile Attack off Kuwait."Lloyd'sList, 16October 1987, Exhibit
238; Statement of Norman Hooke, para. 26, Exhibit 10;Reuters and UnitedPress International wire
reports,15October 1987, reprinted in Lloyd's WeeklyCasualtyReport Services,Exhibit 87; Counter-
Memorial illustration 1.11;"Attackon US - registered Kuwaiti Tanker:Iranian President's Comments,"
BBCSummary of WorldBroadcasts, 17October 1987,Exhibit 238.
414Sungari deck log from 15October 1987,Exhibit 239.
415Lloyd'sStatement, para. 6, Exhibit 240.
416OMI Statement, Exhibit 237.
417Lloyd's Statement, para. 7, Exhibit 240; Statementof Norman Hooke, Exhibit 10;Letter from Kuwait
Oil Tanker Company, Exhibit 89; Sea Isle City Registration documents, Exhibit 159;"Kuwait Lashes Iran
Over Tanker Attack," Lloyd'sList, 17October 1987,Exhibit 241.
4'8Statement of Norman Hooke, para. 27, Exhibit 10;Letter from Kuwait Oil Tanker Company, Exhibit
89;see also Counter-Memorial Illustration 1.11. Captain and one crew member were blinded by the attack and five other crew members
were seriously wounded419.
On 15November 1987 the U.S owned, Liberian flagged motor tanker Lucy was attacked
by fast Iranian patrol boats off Al Khasab, northern Oman, en route to Ras Tanura, Saudi
Arabia from Oita, Ja~an~~OT . he vesse1 sustained damage to her starboard engine room
and lost p~wer~~'.The Master of Lucy entered in his deck log the following
contemporaneousaccount of the attack:
"0800 Gentle breeze. Fine but cloudy and sea slight.
0825 Iranian warshiprequested on ch.16 ship's identification. Ship complied
immediately.
0830 Vessel attackedand fire[d] upon from 3 boats at 26-19n, 056-07.5e.
0836 Sarnefrom 2 boats. Vessel lost power and drifted422".
The following day, 16November 1987,the U.S owned, Bahamian flagged stearn tanker
Esso Freeport was attacked by rocket-propelled grenades launched from Iranian
gunboats,which fired approximately eight rockets, five of which struck the ~essel~~~.
4'9Statement of Captain Hunt, Exhibit 88; Letter from KuwaitOil Tanker Company,Exhibit 89.
420Lucy was owned by a wholly owned subsidiary of Overseas ShipholdingGroup Inc (OSG),
incorporated inDelaware, U.S.A., LucyCertificates of Registry and Ownershipand Encumbrance, OSG
Annual Report list of Wholly-Owned Subsidiaries, Exhibit 242; Lloyd's Statement, Exhibit 240.
42'Excerpts from Statement of General and Particular Average on Motor Vessel Lucy,Exhibit 170. See
also "Iranian Assault Craft Attack ThreeVessels," Lloyd's List,17November 1987,Exhibit 243;
Manchester Guardian Weekly,22November 1987, Exhibit 243.
422Excerpts from Statement ofGeneral and Particular Average on Motor Vessel Lucy,Exhibit 170. See
also "New Iran hit and runtactic," Lloyd'sList, 26 October 1987,(describingIranian tactic of making
"friendly" contact with ship and then moments later attacking it), Exhibit 244.
423ESSOFreeport was owned by a wholly ownedsubsidiary of ExxonCorporation,now ExxonMobil
Corporation, incorporated in NewJersey, U.S.A., Exxonstatement, Exhibit 234. See also "Iranian
Assault Craft Attack Three Vessels,", Lloyd's List,17November 1987Exhibit 243; "Three more vessels
attacked by Iranian speedboat," TheXinhua General Overseas NewsService, 16November 1987,Exhibit
246; "Twotankers attacked in Gulf," TASS,16November 1987,Exhibit 246. Esso Freeport was fully loadedwith a cargoof crudeoil, en route fromRas Tanura,
SaudiArabia to the Louisiana Offshore Oil Pipeline(LOOP) Terminal,U.S. GU~P*~.
Inthe early hours of 7 February 1988,the U.S owned,Liberian flaggedmotor tanker
Diane was attackedby an Iranian frigate while loaded withcrude oil fromRas Tanura,
SaudiArabia en route to Ja~an~~' I.ran requested identificationfromDiane before
attackingher, as contemporaneously reportedbythe Master:
"0145 Iranianwar ship requested onV.H.F.identification andtype of vessel,
Ship comply immediate, position25'5 1N055'41E.
0215 Iranianwar ship attacked vessel position25'49N, 055'40E
0245 Stopped attack& warship departed
0300 Sustaineddamageto hull, decks, steeringgear, electricalinst., piping,
flooding, compartments,equipment,fire & smokedamage426."
TheIranian gunboat attackedDiane with cannonand small arms fire, causing extensive
da~nage~~~.
On 14:April 1988,while returningto Bahrainafterescorting a convoyof U.S. flagged
merchant vessels, the USSSamuelB.Roberts strucka mine laid by Iranian forces near the
424Interna1Exxontransmissions,Exhibit245;Lloyd'sStatement,para.10,Exhibit240;"GunboatsAttack
U.S.Tanker,"ForeignBroadcastInformationService,16November1987, Exhibit15 attached toU.S.
PreliminaryObjection,16December1993.
4'5Dianewasowned by awhollyownedsubsidiaryofOverseasShipholdingGroupInc(OSG),
incorporatedinDelaware,U.S.A.,DianeCertificatesofRegistryandOwnershipandEncumbrance,OSG
AnnualReport,Exhibit242;Lloyd's Statement E,xhibit240;"US.-ownedtanker attackedinGulf,"
Lloyd's List, February 1988,xhibit247;"Liberian-RegistereTdankerisAttacked intheGulf,"TASS,
7February 1988E , xhibit247;"IranianGunboat Attacks Tankeir Gulf,"TheXinhuaGeneralOverseas
NewsService,7February 1988, Exhibit247.
426Dianedecklog from7February1988,Exhibit248.
427See Excerpts froStatementofGeneralandParticularAverageonMotorVesse1 Diane,Exhibit171. ShahAllum Shoal. The mine blew ahole in the ship's hull, causingfloodingin her
engine-roomand severedarnage.TenU.S. sailors were injuredinthe explosion428.
On 11June 1988,the U.Sowned, British flaggedsteamtankerEssoDemetia was
attackedby two Iranian~peedboats~~T ~.e vesse1was hit by at least eight rockets, five of
which penetrated her hull. Onerocketpenetrated theNo. 6port cargotank, causing a
significantfire which destroyedthe port life boat and davitsand damagedthe bridge
wing, theengine room superstructureanddeck areas to the stem. EssoDemetia was
carryinga load of crudeoil from SaudiArabiawhen she wasattacked, 1200light tons of
which were lost into the Gulf. Thecrudeoil was owned by Exxon Corporation,now
Exxon Mobil Corporation430.As a result of the attack and the darnagetothe cargo tanks,
EssoDemetiawas unableto lift cargo for Mitsubishi, ashad beenpreviously
~ontracted~~'T. he damageto the hull caused 450 long tons of fuel tospi11into the
GulfJ3*.
6.07 Iran's responsibility for the attacks listedabove was confirmedby an analysis done
by the intemationally recognized Lloyd's Maritime Information Services(LMIS)433.LMIS drew
428Q and A on USSSamuelB.RobertsRepair,Exhibit120;PostOverhaulAnalysis Report onthe USS
Samuel B. RobertsRepair,Exhibit121. SeealsoCounter-Mernorialp ,aras. 1.105-112.
4'9ESSO Demetiawasownedbyawhollyownedsubsidiary ofExxonCorporationn , owExxonMobil
Corporation,incorporatedinNewJersey,U.S.A.,Exxonstatement,Exhibit234;StatementofGeneral
AverageonEssoDemetia, Exhibit249.
430StatementofGeneral Average onEssoDemetia,Exhibit249;ExxonStatement,Exhibit234;
CertificateofEssoDemetiacargo oilandfuelloss,Exhibit249; "IranResumesAttacks,"Lloyd'sList,
13June 1988, Exhibit250; "U.K.Protestto Iran,"FinancialTimes,14June 1988E , xhibit250.
431Exxoncable, 13 June 1988,Exhibit249.
432Exxon billsofladingandinvoices forEsso Demetia,Exhibit234;ExxonStatement,Exhibit234;
StatementofGeneralAverageonEsso Demetia, Exhibit249;CertificationofEssoDemetiacargooiland
fuel loss,Exhibit249.
433"VesselsReportedtoHaveBeenAttackedandDamagedDuetoActsofHostilitybytheIraqisandthe
IraniansintheGulfAreaSinceMay198 1,"Lloyd'sMaritimeInformationServices,Exhibit9.on data collectedby the Casualty Departmentof Lloyd's of London Press Ltd. (LLP)during the
period in question434T .he Casualty Department of LLP monitored the TankerWarclosely,
obtaining comprehensive information concerning attacks on shipping from a varietyof sources,
including the 1,800Lloyd's Agencies and sub-agenciesin ports throughout the world,news
agencies, ship owners,ship managers,ship brokers and in~urers~~~ T.he information received
was checkedby the LLP Casualty Department toconfirmits validity. LMIS collectsthis data for
the use of worldwideclients whichinclude, but arenot limitedto, maritime solicitors,ship
owners, ship managers, insurance companies, ship builders, shiprepairers, shipbrokers, charter
brokers, shippers and fonvarders, port authorities, oil companies, governments,banks and marine
consultants436.
6.08 United States shippingcompanies and managers ofU.S. flagged shipswere forced
to take extraordinaryand expensive measures to reducetherisk of hami to their vessels from
Iranian attackduringthis peri~d~~'A . network was establishedamong U.S. shippingcompanies,
the U.S. Navyand the British Navythrough which informationwas shared aboutIranian
movement~~~~ S.hipowners took extraordinary precautionsto reducethe dangerto their vessels;
434Statementof NormanHooke,para.20, Exhibit10.
435Ibid.paras. 1,18.
436Ibid.,para.19;Lloyd's Statement,para.2, Exhibit240.
437ChevronStatement,Exhibit180; Statementof ColinEglington,Exhibit31.
438ChevronStatement,para.5, Exhibit180.such precautions included travelingat night, steeringvessels into shallow waters, water-washing
oil tanks to reduce combustibility,and implementing shuttling convoysso that only ships under
military escort would travelinthe
6.09 Iran's attackson neutralshippingduringthis period significantlyincreasedthe cost
of doing business in the Gulffor U.S. companies. Amongthese increasedcostswere hull and
cargo war risk insurance rates,expenseof delayed vessels, double salaries forcrew members and
installation of Kevlar shieldsand other safety eq~ipment~~'.
439ChevronStatement,Exhibit180;Statementof ColinEglington,Exhibit 31.
440Ibid. CHAPTERII
IRANVIOLATEDITS FREEDOMOF COMMERCEAND NAVIGATION
OBLIGATIONS UNDERARTICLEX(l) OFTHE1955TREATY
Section1. Iran Violated ArticleX(l) Because Its AttacksonU.S.Shipping Impeded
Protected Commerce and Navigation
6.10Article X,paragraph 1,ensures "freedom of commerceand na~igation~~'.A " s
conceded by Iran in its Reply, there was substantial commerce,includingmaritime commerce,
and navigation between the two Statesduring the relevant peri~d~~~ I.n 1987,the United States
imported $1,667,500,000 in goods fromIran, $1,452,111,521ofwhichtraveled by sea-going
~essel.~~~Iran exported an averageof 252,000 barrels of crudeoil perday to the United Statesin
1987444.The United States exported$54,100,000 in goods to Iranin 1987,$35,215,695ofwhich
44'These freedoms are tightly interconnected andshould be considered togetherCorfi Channel,the
Court explained that "freedom of navigation flows from freedom of trade.CorfuChannel,1C.J
Reports 1949, p. 98. It is improperfor Iran,when faced with a counter-claimthat arises underthe same
provision of the Treaty as its original claim,to conveniently read certain words out ofthat Treaty.
Reply, para. 11.5.
443U.S. General Imports: World Area andCountry of Origin by ScheduleA CommodityGrouping 1987
December and Annual Report (1988), p. 549, Exhibit 139.
444OPEC 1989Annual Statistical Bulletin,Exhibit 251. Iran exportedanaverageof 68,500 barrelsof
crude oil per day to the United States in 1985and an average of 87,800barrelsof crude oil per dayto the
United States in 1986.traveled by sea-going ~essel~~'.I1988,the United States importe$8,925,015 in goods from
Iran,$3,302,698 of which traveledby sea-going~essel~~~T.heUnited Statesexported
$73,018,226 in goods to Iran,$62,797,701 of which traveledby sea-going~essel~~'.s will be
shown inthe following sections,Iran's concertedattackson U.S. shipping impeded this maritime
commerce and navigation.
B. IRANCREATED CONDITIOT NHSATWERE DANGEROU ASNDDETRIMENTA TLOU.S.
MARITIM CEOMMERC AENDNAVIGATION
6.11 As Iran argued inits Reply,the obligationsof the Parties underArticle X,paragraph
1,includethe obligation not to createdangerousand detrimentalconditions for the maritime
commerce and navigation ofthe otherParty448.In its1998Orderon the counter-claim,this
Court specifically recognized thepossibilitythatthe creationof dangerous and detrimental
conditions for commerce and navigation couldconstitutea violation of thevision449.Iran,
44U.S. General Exports: WorldAreaand Countryof Origin by ScheduleE CommodityGroupings, 1987
Decemberand Annual Report (1988),p. 632, Exhibit 164.
44U.S. General Imports, World Areaand Countryof Origin by ScheduleA CommodityGroupings, 1988
December and Annual Report (1989),p. 653, Exhibit 140.
44U.S. General Exports: WorldArea andCountryof Origin by ScheduleE Commodity Groupings, 1988
December and Annual Report (1990),p. 789,Exhibit 165.
448Reply, paras. 6-6.74.
449"Whereasthe counter-claim presentedby the United Statesalleges attacks on shipping,the laying of
mines, and otherilitary actionssaidto be 'dangerousand detrimentalto maritime commerce'; whereas
such facts are capable of falling withinthe scopeof Article X,paragraph 1,of the 1955Treaty as
interpreted by the Court; and whereasthe Court hasjurisdiction to entertain the United Statescounter-accordingly, violatedits obligationsunderArticle X, paragraph 1,by taking actions which
created dangerous and detrimental conditions for U.S. shipping engagedin maritime commerce
and navigation between Iranand the United States4*'.Chapter 1 of this Part listed aseries of such
actions taking place during a singleyear duringthe relevant period.
6.12 As noted above, as a result ofsuch actions, United States shippingcompanies were
forced to take extraordinaryand expensivemeasuresto reducetherisk of attack by Iranian
forces. For exarnple,because ofthe threat of Iranian attack in the northemareas ofthe Gulf, U.S.
owned and U.S. flagged ships were forcedto direct their vessels intoareas of higher navigational
risk, includingthe shallow waters in the One former shippingcompany official has
stated: "[wle wanted to keep the vessels as far away from Iranand its oil platforms as
possible4S2."
6.13 Threat of Iranianattack also delayedU.S. ships' voyages throughthe Gulf, at
significant cost. The Presidentof Chevron ShippingCompany453 has stated that, in normal
claim in so farasthe facts allegedmay haveprejudiced the freedoms guaranteedby Article X,paragraph
1." OilPlatjorms,Counter-Clairn,OrderofIOMarch 1998,I.C.J.Reports1998,para. 36.
450Chevron Shipping has statedthat they importedan average of 10,000,000 barrels of oil per month into
the U.S. fromthe Gulf during the Tanker War.Chevron Statement,para. 3,Exhibit 180.
45'Statement of Colin Eglington,paras. 10,17,Exhibit 31; Chevron Statement,para. 14,Exhibit 180.
452Statement of Colin Eglington, para.10,Exhibit 31.
453Chevron Shipping Company, a NevadaU.S.A. corporation was awholly-ownedAmerican subsidiary
of Chevron Corporation, aDelaware, U.S.A.corporation during the TankerWar. Chevron Shipping
Company merged into Chevron Shipping LLC, a Delaware, U.S.A. limitedliabilitycompany in 1998.conditions, itstankers would travelthe passage fromthe Straitsof Hormuz to RasTanura, Saudi
Arabia without stopping, in oneand a half days of stearningtime, using routesthat would keep
them in deepwater in the middle of the ~atenvay~~~D . uringthe relevant period,however,
Chevron would often anchor vessels twiceen route, in order to avoid daylight passage and to
allow management to assess the potential foratta~k~~~ S.uch additional daysresultin significant
additional costs, given that suchtankers cost between$30,000 and $40,000 per dayto operate
and that eachday also increases the cost of capital employed. Inthis regard, becausea barre1of
oil at that time cost about $25,the arnountof capital employed with respectto a cargoof crude
oil on a very large crude carrier (VLCC)was about $50,000,000, andon an ultralarge crude
carrier (ULCC)about $75,000,000456.
6.14 U.S. shipping companiesalso took extraordinary measures toprotecttheir crews.
Because traveling in the area was so dangerous at thattime, Chevron, for example,gave each
crew memberthe option of disembarkingbefore his or hership entered the area. Chevron also
purchased additional life insurancepolicies for its crews. Both Chevron andKOTCpaid war
- --
Chevron Statement,para. 1, Exhibit180.
454ChevronStatement,paras. 4, 15,Exhibit180.
455StatementofColin Eglingon, paras.7,9, 13 and 17,Exhibit31; U.S. shipownershadtopurchase
nightbinoculars toincreasesafetyofnavigation an t ight.ChevronStatement,para.9, Exhibit180.
456ChevronStatement,para1 . 5,Exhibit180.zone bon use^^^ C'.evron Shipping Company President ThomasR. Moore describedthe
extensive measures taken by Chevronto protect its crews while in transit in the Gulf:
"Oncethe ship enteredthe Gulf, Chevroncurtailed al1maintenance operations and
required al1crewmembersto confine their activitiesto the ship'shouse (the area
containing the bridge, livingareas and control rooms). On vessels thesize of these
tankers, crew members normally perform maintenance activitiesthroughoutthe vessel's
voyage. Duringthe most dangerous parts ofthe transit in the war zone,al1non-essential
work was curtailedand al1crewmemberswere required to congregate onthe tanker's
bridge as this was thoughtto be the safestplace. Chevron installed Kevlar screens onthe
bridge to protect the Helmsman frompossible shrapneland glass shards. . .
"To facilitate arapid evacuation of theship should that becomenecessary,the lifeboats
were readyto lower at al1times. The lifeboatswere uncovered and unstrapped, and
loaded with navigational charts and othermaterial specificallydesignedto allowthe boats
to navigate and communicatein the G~lf4*~."
6.15 Under normal conditions, tanker Masters receive instructionsconcemingthe pick-
up and delivery of their cargo and it is for the Masterto decide on a safe route forhis or her
vessel. During the relevant period, however, the threat of attack wasso severethat Chevron
management issued explicit instructions to Masters conceming the appropriate route459.These
instructions were basedon the most recent reports fromthe U.S. Navy andother sources with
respect to Iranianmilitary activity against neutral~hipping~~'.
457Chevron provided100%bonuspayfor crewmembersduringthe timethey wereintheGulf. Chevron
Statement,para. 7,Exhibit180;Statementof ColinEglingon,para. 8,Exhibit 31.
458ChevronStatement,paras.9-10,Exhibit180.
459ChevronOilCompanytelegram,Exhibit111.
460Chevron Statement,para.6, Exhibit180. 6.16 Iran's attackson neutralshipping also resulted in adramatic increase in the costof
the war risk insurance borne by U.S.companies. From 1January 1987to 1January 1988,for
example, the cost of hull war risk insuranceroseby 500% for vessels callingat ports in Kuwait.
During the same period, for vessels calling at Bandar Abbas, thecost of such insurance roseby
400%. Hullwar risk insurance ratesincreasedby 200% for vessels travelingto SaudiArabia,
Qatar, UnitedArab Emirates, Bahrain,Hormuz and Larak Island overthe sarneperiod 46'.
Lloyd'sUndemiters' Association increasedwar riskinsurance premiums inspecificresponseto
the mining of TexacoCaribbeanandthe Iranian cruisemissile attacks on Sungariand theSea
IsleCity462.Additionally cargowarrisks insurance rates for vessels traveling to certainIranian
ports increased50% inthe days immediatelyfollowingthe mining of TexacoCaribbean4(j3.
C. IRANIMPEDED U.S.ACTIVITIE ASNCILLART YOMARITIMC EOMMERCE
6.17 The USSSamuelB.Robertsand otherU.S.Navy vessels were called into serviceto
escort U.S. flagged vessels in the Gulfand protect them fromIranian attack. Asthe formerU.S.
Navy Commander of the MiddleEast Force stated:"[tlhepurpose of [Operation]EarnestWill
-
461"ShippingRunstheGulfGauntlet,"8January1988, Lloyd'sList,Exhibit252.
462"WaitingGulfShipstoPayWarPremium," Lloyd'sList,12August1987,Exhibit 253;"TehranStrikes
Revenge Blow at US:MissileAttackSeenas Retaliation OilPlatform'sDestruction,TheGuardian,
23 October1987,Exhibit 253.
463"CargoRatesRiseforGulfWarRiskAreas," Lloyd'sList,1August1987,Exhibit 254.was to preserve the freedom of commerceand navigationof U.S. flagged vesselsin the region
and to protect such vessels fromatta~k~~~.T "he threatof attack from Iran was so severe during
this period, that had it notbeenfor the escortprovided bythe U.S. Navy, theU.S. flagged vessels
could not have engagedin commerceand navigation inthe area. In mining the shippinglane
known to be used by convoysof U.S. Navy and U.S. flagged merchant vesselsengaged in
commerce and navigation in theregion,and launchingthe mine attack on the USSSamuelB.
Roberts, Iranthus impeded an ancillary activity supportingthe protected commerceof U.S.
flagged vessels.
6.18 This Court'sruling inNicaragua furthersupports a finding that Iran violated Article
X,paragraph 1,specifically bylayingmines inneutralshipping lanes frequentedby U.S. vessels.
This Court held inNicaragua that the United Stateshad contravened its obligationsunder the
Nicaragua Treaty by lending financialand military supportto Nicaragua's insurgentparamilitary
contra forces. Although the Court considered a numberof aspects of U.S. supportfor the
contras, the relevant aspect of itsdecisionfor purposesofthis counter-claim concerns its
treatment ofmines placed by the United States in Nicaraguaninterna1watersandNicaragua's
464See Statementof RearAdmiralHaroldBernsen,Exhibit43; Statementof GeneralGeorgeCrist,
Exhibit44.territorial sea465.The Court foundthatthese mines caused extensivedamage to both Nicaraguan
and neutral ships,destroying or damagingtwelve vesselsor fishingboats of various nationalities,
killing fourteenpeople, and wounding two~thers~~~ .he Courtheld that by placing mines in
Nicaragua's harbors, the United Stateshad unequivocallycontravenedits obligations underthe
Nicaragua Treaty: "[wlhere the vessels of one Stateenjoy a right of accessto ports of another
State, if that rightof access is hinderedby the laying of mines, thisconstitutes an infringementof
the freedoms of communications and of maritimecommerce467."In this regard, the Courtfound
that "the United States [had acted]inmanifestcontradiction with the freedomof navigationand
commerce" guaranteed by the NicaraguaTreat~~~'.
6.19 The facts found by this Courtwithrespect to the UnitedStates' actions in Nicaragua
in 1983-1984 and Iran's actions inthe Gulfduringthe relevantperiod are strikingly similar. This
Court found thatwithout notice, the United Stateshad placed mines in waters criticalto
commerce and navigation betweenNicaraguaand the United States,causing extensivedamageto
465In its application,Nicaragua accusedthe United Statesof engaging in a practice of small-scalemining
of Nicaraguan waters and ports in early 1984. Nicaragua,Merits, Judgment 1,C.J.Reports 1986,paras.
76-80. The Courtfound that the United States failedto give notice ofthe mining to any parties, including
neutral third parties. ("Itoes not appearthat the United States Governmentitself issued any warningor
notification to other States of the existence and locationof the mines")Ibid.,para. 77; ("neitherbeforethe
laying of the mines, nor subsequently, did the United States Government issueany public and official
warning to internationalshipping of the existence and location of the mines. ...")Ibid., para. 80.
466Ibid, para. 76.
467Ibid.,para. 253.
468Ibid, para. 278.Nicaragua and creating dangerousconditions thatimpededcommerceand navigationby both
U.S. andneutral shipping. Here,likewise withoutnotice,Iran placed mines in Gulfwaters,
causing extensive damage to U. S. and neutral shippingand creating dangerous conditionsthat
impeded commerce and navigation.
6.20 Iran has suggestedthatthe increase in importsof Iranian crude oil to the United
States in 1987undercuts the validityof the assertion that commerce and navigation were
impeded during that period4(j9.In fact, as demonstratedabove, Iranian attacks oncommerce and
navigation are well-documented. The fact thatU.S. shipowners and companies engagedin
dangerous andexpensive practicesthat permittedtradeto continue, despite Iran'sclearefforts to
impede it, cannot excuse Iran'sillegalconduct. The volumeof trade between the parties is not
determinativeofthe existence ofimpediments and obstaclesto commerce and navigation.
469Reply,para.9.2. 6.21 Iran argued in its Replythat a Partyclaiming a violation of Article X, paragraph 1
does not need to showthat the other Party's actionsimpededspecific commerceor navigation
occurring between the Parties atthe precise time of theatta~ks~~'. As Iranstated in support of its
own claim:
"Itis clear that this provision [X(l)] wouldbe violated if the free circulationof goods
between the territories of the two countrieswerehindered by obstaclesof any kind,
including the destructionof facilities designed for thatpurpose,regardless of the question
of whether such facilities were actuallyparticipatingin commercialactivities between the
Parties at the precisetime of the atta~ks~~'."
As demonstrated above, there was an on-going streamof maritime commerce and navigation
between the United Statesand Iran.
6.22 Iran has relied onNicaragua in assertingthatit is not requiredto demonstrate that
the alleged illegal actsof the United States impededspecific commercebetween Iran andthe
United States. Iran has noted that:"[Nlowherein the 1986Judgmentdidthe Court concern
itself with verifying whether specific commercial activities were takingplace betweenthe
territories of Nicaragua and the United Statesat the moment of the U.S.atta~ks~~*.A " review of
Nicaragua's Memorial and oral pleadings revealsthat counsel for Nicaragua did not present the
470Reply, paras.6.44 - 6.57.
47 Reply, para.6.48.
472Reply, para.6.50.Court with evidence that, inter alia, the miningof the Nicaraguan harbor impededspecific
commerce between the UnitedStatesandNicaragua. Instead Nicaragua presentedevidence that
its imports and exports werenegatively effectedby the mining, without referenceto whether
goods were coming from or goingto the United States473.The United States has argued in Part
III that the circumstances presentinthe Nicaragua case allowedthe Courtto find a violation of
the Nicaragua Treaty even withoutevidencethatthe attacks at issuepreventedspecific
commercial activitiesbetweenNicaraguaandthe United States. Thosecircumstances were that
there was no dispute betweenthe partiesas to the existence of trade betweenthem passing
through the relevant ports,andthat the attacks were againstport andport facilities such that the
Court could conclude that freedomof commerce and navigation betweenthetwo States was
clearly impeded. Those circumstancesarenot present with respectto the Court's consideration
ofwhether the U.S. actionsagainst Iran's oil platforms constitute a violationof Article X,
paragraph 1,as discussed in PartIII. However,the United Statessubmits thatthe sarne
circumstances present inNicaragua are present inthis case with respect to Iran'sattacks on U.S.
shipping. Unlike the situationof the platforms in Iran's claim, thereis no dispute between Iran
and the United States regardingthe existence of general maritime commerce betweenthe parties
during the relevant period. Further,the United States submits that Iran's attacks, particularlyits
laying of mines, violates Iran'sobligation toensure freedom of commerce'andnavigation
473See e.g.Nicaragua,Jurisdiction,CR/84/8,25 April1984,pp.33-35.
20 1between Iranand the United States. In light ofthese circumstances,the Court, consistentwithits
approach inNicaragua,need not find that the Iranianattacksaffected specific shipmentsof
goods betweenthe two countries.
6.23 Even should the Court find that theUnitedStatesmust show that the Iranianattacks
affected specificshipments betweenthe two States, it isclearthat Iran's illegal conductviolated
Article X, paragraph 1. For example, TexacoCaribbeanwas loaded with U.S.ownedIranian
crude oil whenit struck an Iranianmine474.In addition,shipsengaged inmaritime commerce
between Iranand the United Statesincurred additionalcosts,with respect to such itemsas hull
insurance, as a result of Iran's activities, evenwhenthoseactivities werenot directed specifically
against them.
474Texaco Statement,Exhibit 211; Lloyd'sStatement,para. 5,Exhibit240. Section 2. Iran Violated the FreedomsGuaranteedUnder Article X(l) ,s Informed by
Article X(5)
6.24 While the Courtappearsto have narrowedthe scope of the co~nter-claim~~~ it,is
appropriate to consider the otherprovisions of ArticleX in assessing the scopetobe accorded
Article X, paragraph 1476.Al1of Article X is of interestwhen considering the breadthof
freedoms protected by ArticleX,paragraph 1and ArticleX,paragraph 5, is of particular interest
inthis regard.
6.25 Article X, paragraph 5,provides thatU.S. ships in distress shallbe permitted to take
refuge inthe nearest Iranianport or haven and shallreceive friendly treatmentand assistance
from Iran477.It thus places specificobligationson Iranto treat U.S. ships in distress in a friendly
and helpful manner, and placesanimplicit obligationon Iran not to affirmativelyplace U.S.
ships in distress. It isan understatementto observethat Iran did not treatU.S. shipsin such a
manner and, in fact, causedandexacerbated their distress. U.S. shipping companies were so
apprehensive ofthe threat of Iranianattack thattheywould not have consideredseeking safe
475ButcJ:This Court found that the counter-claim "isadmissible as such and formspart of the current
proceedings." Oil Platforms,Counter-Claim,Orderof 1OMarch 1998, I.C.J.Reports, para. 46.
476Judge Higgins explicitly recognized an interpretation ofArticle X, paragraph 1that would encompass
other provisions of Articlehen she stated: "Itmaythus be that while Article X,paragraph 1, isthe
sole basisofjurisdiction identifiedbythe Court, paragraphs2 6ostill have relevanceto the task of
ascertaining the freedoms guaranteednder paragraph 1."OilPlatforms,Counter-Claim,Order of 10
March 1998,L C.J. Reports1998, p. 18,separate opinionofJudgeHiggins.
477Article X(5) States:"Vesselsof either High Contracting Party thatare in distress shall be ptomitted
take refuge inthe nearest port or havenofthe other HighContracting Party, and shall receive friendly
treatment and assistance."harbor in Iran. An officia1of Chevron ShippingCompany has statedthatit: "consideredports in
the United Arab Emirates as its only ports ofrefugein the Gulf. SinceIranian forcesappeared to
be the main threatto Chevron vessels, Chevron couldnot have looked to them for a safe
harb~r~~~.
6.26 Ratherthan meeting U.S. vesselsin distress with friendlytreatment and assistance
as required by Article X, paragraph 5,the evidenceis clear that Irantargeted U.S. vessels,as
described inPart 1above. The formerGeneralSuperintendent of Operations forthe Gulf with
the KOTC, who operated its U.S. flaggedvessels,statedthat the "Iranianshad placeda pattern of
moored minesacross the route that theyperceivedthe convoy wouldtake. .. .Webelieved Iran
wanted to strikethe convoy of U.S. flaggedKOTCvessels and U.S.warships. . .. OnlyIran
would have known when the convoywas passing andonly Iran could have placed the mines in
fime479 11
6.27 As the U.S. flagged Bridgeton preparedto lift her cargoat the end of July 1987,
Iranian PresidentAli Khameini wamed theUnitedStates to pull its forces out of the "dangerous
whirlpool" of theGulFgO.Khameini said "[tlheyhad better leavetheregion, otherwisewe shall
478ChevronStatement,para . 3,Exhibit180.
479StatementofColinEglington,para.19,Exhibit 3 1.
480"Iran warning as'Bridgeton'beginsloading," Lloyd'sList 1August 1987E , xhibi5 1.strike them so hard they will regretwhatthey havedone4"." News of the U.S. flagged Bridgeton
hitting anIranian mine was conveyedtothe congregationof the Islamic Councilby Hashemi-
Raf~anjani~~'I .t was reportedthat that the newsreceiveda vigorous responseand that the
congregation, shouting "deathto theUnited States",expressed their hatred for global arrogance
and United States intervention in theregi~n~'~.As notedabove, Hashemi-Rafsanjani praised the
attack with reference to "God'sangels" doing "whatis necessaryat the appropriatetime" with an
"invisibleshot" against Iraq'spartner~~~~."
6.28 Iran similarly targeted other U.S. ships, includingthe USSSamuelB.Roberts485.As
noted above, on the day of the attackon the USSSamuelB. Roberts, the Commanderofthe
IranianNavy, Commodore MohammedHoseyn Malekzadegan, acknowledged thatthe Iranian
Navy hadbeen engaged in "awholeheartedtask. .. overthe past year, comprisingindirect blows
in particularto the U.S. fleet, affectingboth its warshipsand its merchant vessels,with mines or
missiles. .. .486"Iran violatedits generalobligationunderArticle X, paragraph 1to ensure
481Ibid.
482"Hasherni-RafsanjanP ioliticalSermon,"ForeignBroadcastInformationService, 24 July 1987, Exhibit
50.
483Ibid.
484Ibid.
485SeeCounter-Mernorialp ,aras.1.105 - 1.112.
486Counter-Mernorialp ,ara.1.112"freedom of commerce and navigation" between the UnitedStates and Iranby placing U.S.
vessels in distress through repeated atta~ks~~'T. hatIran'sgeneral obligationencompasses an
obligation not to place vessels indistress is clearwhenArticle X, paragraph 1is viewed within
the context of Article X as a whole, and specificallythrough referenceto Article X, paragraph 5.
487See Statementof RearAdmiralHaroldBernsen,Exhibit43; Statementof GeneralGeorgeB. Crist,
Exhibit44 (describingtheU.S.NavyandU.S. Marine Corpp serceptionoftheIranianthreatto U.S.
flaggedandU.S. merchantvessels). Section3. TheU.S. Reflaggingwas Proper
6.29 Iran's continued effortto discredit theU.S. flagging of Kuwaiti tankersunder U.S.
Registry must berejected. At Kuwait'srequest, theUnited States flagged eleven Kuwaiti
vessels underU.S. regi~try~~'T . heflaggingprocedure forthese vessels was consistent with
international lawand applicableUnited Statesand [email protected] flagging of these vessels
did not affecttheir neutral statusandthe vessels didnot carrywar materiel or cal1at either Iraqi
or Iranian ports. Under internationallaw,a Statemay conferits nationality on a shipby
registering the ship, authorizingitto fly its flag, issuingpapers documentingthe ship's
nationality andthus establishing a "genuinelink" betweenthe ship and its flag State. As
described inthe Counter-Memorial,al1of these elements were met bythe United Stateswhen it
flagged the Kuwaiti tankers490.
6.30 First, consistent withexisting U.S. lawsand regulations, the shipswere properly
registered and issued certificates ofdoc~mentation~~'S. econd,the U.S. had a "genuinelink"
488See"TheTankerWar-NoEnd," p.6,Intertanko,Exhibit1;Statement of Colin Eglington, par1 a.,
Exhibit3 1.
489SeeMyron H. NordquistandMargaret G. Wachenfeld,"LegalAspects of Reflagging KuwaitiTankers
andLayingofMinesinthePersian Gulf," 31 GermanYearBookofInternationalLaw,p. 139(1988);
George K. Walker,TheTanker War, 1980-88: Law and Policy,InternationalLawStudies,Volume74
NavalWarCollege, NewportR , hodeIsland,pp.60,304-5,388(2000).
490See Counter-Mernorial, para1s..14-1.1; aras.4.13-4.18.
49'Forexample,seeSeaIsleCity'sU.S.registration documents E,xhibit159.with the vessels. The applicable internationallawonnationality of shipsis codified in two
internationalconventions, the 1958Conventiononthe High Seas and the 1982UN Convention
on the Law ofthe Sea492.The United States is apartyto the first, but notthe second Convention;
Iran is not a party to either. Both Conventionsprovidethat in determining whether a genuine
link exists, it isitical whetherthe State exercisesjurisdiction and controlover administrative,
technical and social matters with respectto the vessel493. Beyond this basicdefinition, States
have broad discretion in determining whether agenuinelink exists. Forexample,the recent
Saig~~~d ~ecision delivered by the International Tribunalfor the Law ofthe Seareiteratesthe
doctrine that avesse1isof the nationality of itsflag, andthat each Statehasthe power to
determineits criteria for allowing vessels to fly itsflag.Saiga, the dispute involved a Cypriot
owned, Scottish managed, Swiss chartered tankerflyingthe flag of SaintVincent and the
Grenadines. The Tribunal permitted SaintVincent and the Grenadines to bringthe claim. The
Tribunal also stressedthat notwithstanding the "genuinelink" language, thefrarnersofthe 1958
4921958ConventionontheHighSeas,13 UST2312,TIAS5200,450UNTS82,Exhibit156;1982 UN
ConventionontheLaw oftheSea, 1185 UNTS,entered into force16November1994,Exhibit156.
493Article 5ofthe 1958Conventionstates"Theremustexistagenuinelinkbetweenthe Stateandthe
ship;in particular, theStatemusteffectivelyexercisitjurisdictionandcontrolinadministrative,
technicalandsocialmatters overshipsflyingits flag."13UST2312, TIAS5200,450UNTS82. Article
91(1)ofthe 1982Convention states"Theremust existagenuine linkbetweentheStateandtheship";and
Article94(1):"EveryStateshalleffectivelyexerciseitsjurisdictionandcontrolinadministrative,
technicalandsocialmatters over shipsflyingitsflag."UnitedNationsDocument AlCONF.621122.
494WV "Saiga"(No. 2)Case (SaintVincentandthe Grenadine s.Guinea)(1999),reported in38
InternationalLegalMaterials, p. 1323 (1999).Convention on the High Seas explicitlyrejectedproposed languagemandating that such a link be
a prerequisite forthe recognition of a vessel's nationalityby other States495.Similarly,the 1986
UN Ship Registration Convention,which wasdesigned to tightenthe conditions for granting
nationality, continues to provide Stateswith "aconsiderable degreeof discretion as to how it
ensures links between itself and its ships aregen~ine~~~."
6.31 U. S. law provides that onceavesselmeets U.S. domestic law registration
requirements, agenuine link betweentheU.S. andthe vessel has been formed and the vessel is
allowed to flythe U.S. flag497.ThereflaggedKuwaiti vessels metal1of the U.S. registration
requirements ineffect at that time, and thereforewere properly permittedto fly the U.S. flag498.
Requirements imposed bythe United Statesprior to registration,for exarnple, includeda
determination that the vessels were designed,constructed and equippedto ensure safe
495Ibid.,1343. See also Shabtai Rosenne, "TheInternational Tribunalfor the Law of the Sea: Surveyfor
1999," TheInternational Journal ofMarineand Coastal Law, Vol. 15,No.4. pp. 443,454-55 (2000).
496The 1986UN Ship Registration Convention wasadopted by the United Nations Conferenceon Trade
and Development but has not entered into force.26 InternationalLegalMaterials, p.1229.
497The U. S. SupremeCourt stated in Lauritzenv.Larsen, 345 U.S. p.584 (1953), Exhibit 256 :"Each
stateunder international law may determine foritselfthe conditions on which it will grant its nationality
to amerchant ship, thereby accepting responsibilityfor it and acquiring authority over it. Nationality is
evidenced to the world by the ship's papers and its flag. The United Stateshas firmly and successfully
maintained that the regularity and validity of a registrationan be questioned only by the registering
state."
498Iran'sassertion that the U.S. relied ona "loophole"inthe registration requirements must berejected.
See National Marine Engineers'BeneJicialAssociation v.Burnley 684 Federal Supplementp. 6 (D.D.C.
1988),(finding that U.S. did comply with U.S.manningrequirements forthe eleven reflaggedKuwaiti
tankers), Exhibit 257.~peration~~~an;d that they employeda U.S. captainand a propernumber of appropriately trained
crew500.Following appropriateprocedures, the UnitedStatesdeterminedthat it was proper to
register the Kuwaititankers, thus establishing a "genuinelink" betweenthe United States and the
Kuwaiti tankers. Iran'sclaimsthat this flagging wasimpropermust be rejected.
499See Title46, United StatesCode, Section3306, Exhibit158;Title46, UnitedStates Code, Section
12110(d),Exhibit158; Title46, United States Code, Sections 8101-81E,xhibit158.
'O0Ibid. Section4. The U.S.Claimfor U.S. Ships is Proper
6.32 Iran expressly recognizes that vessels flyingthe Iranian or U.S. flag as well asthose
flying a flag otherthan Iranian or U.S. areprotectedby the freedoms established in ArticleX,
paragraph lS0'.The United States agrees. However,.Iranasserts that the issueof nationality of
the vessels is "plainly relevant to the questionof any rightthe United States may have to espouse
a ~laim."~" In this section, the United Statessubmits,first,that the counter-claimis not
dependent on an espousal of claims held by U.S.nationals and that the UnitedStates therefore
has the right to bring this claim forbreachof the 1955Treaty without such espousal, andin its
own right. Second, andin the alternative,the UnitedStates submitsthat it is espousing the claim
for the U.S. shipping on behalf ofthe U.S. corporationswho owned the vessels. Under either
theory, the U.S. claim for the vessels in questionis clearly admissibleso3. Inthe circumstances
there was no possibility for the owners to exhaustany remedies inIran.
6.33 Some ofthe vessels attackedby Iranwere not under U.S. flag, but wereeither
owned by U.S. nationals or their cargowas ownedby U.S. nationals. Forexarnple,the Sungari,
Lucy,Diane, Esso Freeport and Esso Demetiawere each ownedby U.S. corporations when they
'O'Thus Iran stated: "It is true that there can be commerce 'betweenthe territories of the High Contracting
Parties'in foreign vesselsi.e., vessels which are neither Iranian nor United States). Thus the nationality
of the ship or other mode of transport is notdecisivefor this purpose." Reply, para. 10.1(1).
502Ibid.
503Iran'schallenge to the admissibility of the counter-claim based on Article XXImust also be rejected.
OilPlatforms,Counter-Claim,Orderof 10 March 1998,I.C.J.Reports 1998, paras. 5-6,46.were attackedby Iran504.The TexacoCaribbeanwasbareboat charteredby a U.S. corporation
and was canying U.S. owned cargowhen it was attackedso5.
6.34The United States submitsthat this counter-claimis not dependent on an espousal of
claims held by U.S. nationals. TheUnited States itselfhas directlysufferedby Iran's breachof
its Article X,paragraph 1treaty obligations. That injuryis akin to the injury sufferedin
NicaraguabyNicaragua, wherethis Court found that by layingmines that interferedin maritime
commerce and navigation, the United States had violatedits obligationsto Nicaragua under a
comparable treaty to that now beforethis Court. InNicaraguathe Court did not insistthat
Nicaragua establish that it had espoused claims of its affectednationals, nor insistthat Nicaragua
undertake steps typically associatedwith the espousalof claims,such as the exhaustion of local
remedies in the United States. Whilemany of the Iranianattackswere against vesselsthat were
not flying a U.S. flag,that fact doesnot preclude the United Statesfrom assertingthat it has
directly sufferedinjury by Iran'sfailureto abide by atreatythat protectsU.S. ownedvessels and
U.S. cargo. To the extent that the Court is concernedabout whetherthe flag Statesof those
vessels wish the United Statesto advance such claims, the UnitedStateshas submitted evidence
showing that the flag State for eachof the non-U.S. flagged,U.S. ownedor U.S. operated vessels
504Exxon Statement,Exhibit234, LucyandDianecertificatesof Registryandof Ownershipand
Encumbrance, Exhibit 242; Certificateof OwnershipandEncumbranceE , xhibi237.
505Texaco Statement,para. 2,Exhibit211.has confirmedthat it has no objectionto the presentationby the United States of such claimso6.
This confirmation is significant,for wherethe Courthas foundthe nationalityof the injured
entityto be of relevance in precluding a claim, it hasdone so out of concernthat the rights of the
Stateof nationality be respected507.
6.35 It is well-established thata Statehasthe rightto protect a vessel inwhich its
nationalshave an ownershipinterest, evenwhenthe vesselis sailing under a foreign flagso8.For
example, in the case ofthe Alliance509t,he Arbitral Commission adjudicatingclaims of the
United Statesagainst Venezuela, held that becausethe Dominican flaggedvesselwas owned by a
U.S. citizen,the vessel could appropriatelybe protectedby the United States. Similarly, the Im
Alonecaseconcerned the sinking of anU.S. ownedBritish ship of Canadianregistry by the U.S.
Coast Guard5l0.Canada claimed darnagesfrom the United States basedupon the ship's
nationality. The Commissioners appointedundera 1924Convention betweenthe United States
and Great Britain foundthat although I'mAlonewas a British ship of Canadianregistry, it was
506SeeDiplomaticNotesfromtheUnitedKingdom,theCommonwealthoftheBahamasandPanama,Exhibit
179;DiplomaticNote fromLiberia,Exhibit258.
507BarcelonaTraction,LightandPower Company,Limited, Second Phase, JudgmenI t,.C.J. Reports
1970, paras.85-103.
'O8Seegenerally A.D. Watts,"TheProtectionof MerchantShips,"33 British YearBookof International
Law, p. 52 (1957).
509Alliance, ArbitralCommissionof 1903,GreenHaywood Hackworth2 , Digest of InternationaLaw, p.
757 (1941).
"O Claimof theBritish Ship "I'mAlone"v.UnitedStates,3 R.1.A.A p. 1609(193 5).de facto owned,controlled and, at thecriticaltimes, managed, andhermovements directed and
her cargo dealtwith and disposedof, by a group of persons acting in concertwho were entirely,
or nearly so,citizensof the United States. On thatbasis,the United Stateswas not requiredto
pay any compensationto Canada or GreatBritain forthe lossof the ship orthe cargo
notwithstanding the ship's Canadianregistry5".
6.36Iran's suggestion thatbecausethe U.S. Navyprovided protection only toU.S.
flagged ships,the United States is limited to bringing claims with respectto U.S. flagged ships,
isunfounded5I2.The standardused by the U.S. militaryin determiningthose ships for which to
provide protectionhas no legalor logical bearingonthe rights of the United Statesto bring a
claim with respectto damage to U.S. owned ships. Indeed,the United States could bringsuch a
claim evenhad the U.S. Navy provided no protectionto any vessels. U.S. shipping companies
were also inclose contact with the U.S. Navy's Central Commandin Tampa, Florida, to
exchange intelligenceabout Iran's hostile activitiesinthe region. Chevron Shipping Company's
International Ports and Navigation Department was typically in touch withthe Central Cornmand
two or threetimes a day513.
6.37 The United States hasa further interest in suchU.S. ownedvessels because it may
need to cal1uponthem in times of national emergency. U.S. lawprovidesthat wheneverthe
"' Ibid.
Reply, para.10.1.
ChevronStatement,para.5, Exhibit180.President ofthe United States proclaims that thesecurityor the national defensemakes it
advisable,or during any national emergency declaredby proclamationof the President, it is
lawfulfor the Secretary of Transportation to requisitionor purchase certain U.S.owned vessels
or other watercraft5I4.The owner is not paid any consequentialdarnages arisingfrom a taking or
use of propertyunder this authority5I5.As participantsin the U.S. war risk insuranceprograrn,
neitherthe Bahamas, Panama nor Liberia have lawsor regulationsthat would restrictthe ability
of the U.S. governrnentto cal1on vessels ownedby U.S.citizensflying the flags of those
States5I6.Accordingly, the United States may acton its own behalf in bringingthis counter-
claim against Iran withrespectto Iran'sviolationsofArticle X,paragraph 1,of the 1955Treaty.
6.38 If the Court should find that the UnitedStatescannotadvance its entire counter-
claim without espousing the claims of its nationals,thenthe U.S. submits that it is espousing the
claims of the U.S. corporations that ownedthe vesselsattackedby Iran. Sungari, Lucy,Diane,
Esso Freeport and Esso Demetia were al1ownedby U.S. corporations when theywere attacked
by Iran5I7.The TexacoCaribbean was bareboatcharteredby an U.S. corporation atthe time it
Title 46,UnitedStatesCodeApp.,Section1242(a),Exhibit259.
Ibid.
Title46, UnitedStatesCode App.,Section 1282E , xhibit260.
5'7ExxonStatement,Exhibit234; Sungari certificateofOwnershipandRegistration,Exhibit237; Diane
and Lucy Certificatesof Registryandof OwnershipandEncumbranceE , xhibit242.was attacked, causing U.S. owned cargo to spi11into the Gulf518. NOexhaustion of local
remedies is required given the circumstances in Iran during the relevant period, during which
Iran consistently demonstrated its hostility towards U.S. interests and the impossibility that a
U.S. corporation could receive a fair hearingthere519. Iran's violation of international law by
breaching the obligations of Article X, paragraph 1,of the 1955 Treaty with respect to each of
the vessels in question is well-documented. The U.S. fully reserves its right to further develop
al1pertinent facts and arguments.
Section5. Iran'sReservationunder Article XX (l)(d)
6.39 In the final chapter of its Reply, Iran reserved the right to assert that it was entitled
by virtue of Article XX, paragraph 1(d) of the 1955 Treaty to take actions against U.S. and
Texaco Statement, Exhibit 211.
'19The issue of exhaustion of localremediesrelates to the admissibility of a claim. This Court has
already found in itsrder of 1998that the counter-claim "is admissible as suchand forms a part of the
current proceedings." Oil Platforrns (Counter-Clairn) 1998Order, para.46. Further, Iran has now filed a
"Defenceto counter-claim," not objectionsto its admissibility. Nevertheless,the United States notes that
were Iran allowed topursue an argumentthat the relevant U.S.nationals should haveexhausted local
remedies in Iran, Iran would be required toshowthat such remedies wereavailable and would have been
effective. As was stated in thernbatielosArbitration, 12R.I.A.A.p. 119 (1956), "to contend
successfullythatthe international proceedings are inadmissible,the defendant State must prove the
existence, in its system ofnterna1law, of remedies whichhave not beenused." Further, such remedies
must be effective, meaning that they would result in an independentand impartialjudgment capable of
leading to meaningful relief to a successfulclaimant. See FinnishhipsArbitration,3 R.I.A.A. p. 1479
(1934). In light of the hostility of Iran to theUnited States, as well-documentedby this Court in
Diplomatie and Consular StafSin Tehran,1C.J Reports 1980, there can be little doubt that no effective,
available remedies for U.S. nationals existed in the courts of Iran.neutral shipping to protect its essential security inter est^'^^ I.an hasnot, however, developed its
argument in this regard.
6.40 As demonstrated above,the United Statesagreesthat Article XX, paragraph 1(d)
provides a measure of discretion for aparty to apply measures "necessary to protectits essential
security interests." Accordingly,the United Statesacceptsthat ArticleXX,paragraph l(d) may
provide a defense to Iran's violationsof ArticleX, paragraph 1,in the same manner and to the
same extent that it provides a defense to theUnited Stateswith respectto U.S. actions againstthe
oil platforms.
520Reply, paras. 12.2-12.3. CHAPTERIII
IRAN HAS NOT DEMONSTRATED AVALIDDEFENSETOTHECOUNTER-CLAIM
6.41 In Part IV, chapter 9, of its Reply, Iranhas offered defensesfor its illegal conduct.
None is well-founded. This Chapterwill demonstratethat Iran's actions were notjustifiedunder
international law. It will concludeby noting that the quantificationofU.S.damageswill be the
subject of a subsequent proceeding.
Section1. Iran's Actions Were NotJustifiedUnderInternational Law
6.42 As stated in the counter-claim, Iran's attackson U.S.and other neutralshipping had
nojustification under any provision of internationalla^^^'.Iran's attacks were notlawful
measures of self-defensetaken in conformity with the Charter. Consequently,the wrongfulness of
Iran's actionsat issue in this case isnot precluded, accordingto the customaryf stateresponsibility
expressed inArticle 22 of the InternationalLaw Commission's draft articles on the subject.also
violated multipleprovisions ofthe law of armed conflit. Iran responds in its Reply witha bold,
unsupportable assertion:
52See, e.g.,Counter-Memorial, paras.6.19-6.23; Article22,draft articleson stateresponsibility, Reportof
the InternationalLaw Commission on the work of its 52dsession, 2000, Doc. Al55110,p. 129. "Third States,owing a duty under generalinternationallaw of strict neutrality towards a
State defending itselfagainst aggression,t expect thesame levelsof@eedomand
securityas wouldbe the case inpea~e~~~."
Similarly, Iran states:
"Inrelation to the general situation facing it inthe Persian Gulf,Iraned to take
al1appropriate measuresin self-defense. In that contextsome impacton thefieedom of
tradeand commercewas inevitableand cannotbe held to breachthe Treat~~~~."
Iran thus seeks from this Court a decision absolvingit of responsibility forits attacks because of
its war with Iraq. Iranasksthe Court to ignore its attackson neutral shippingbecause ofthe
"inevitability"of such attacks in the context of theIran-IraqWar. Both propositions offend basic
principles of internationallaw. They illustratethe illogic of Iran's claims beforethis Court and
should be rejected.
A. IRAN HASNOTDEMONSTRATA EDVALID CLAIM OFSELF-DEFENS WEITHRESPECT TOU.S.
ANDOTHER NEUTRAV LESSELS
6.43 Iran has long claimed to haveused forcein self-defense against Iraq consistent with
the UNCharter. Yet any defenses that Iranactedin legitimate self-defensein its war with Iraq,
or engaged in legitimate military operations in connectionwith its war with Iraq, however valid,
52Reply,para.11.2 (emphasis added).
5'Reply,para.12.2(emphasisadded).Inclaimingtheprotectionof theExceptionsClauseiftheCourt
findsintheUnitedStatesfavor,Iranadds,"Iranwas defendingitselfagainstaggr... .Reply,
para.12.3.are not relevantto its assertions that "[tlhird States ... cannotexpectthe sarnelevelsof freedom
and securityas would be the case inpea~e~*~.I "ran hasfailedto show,for instance,that its
attacks on neutralvessels amountedto necessary andproportionate responses in self-defenseto
Iraqi behavior. Indeed, Iran can adduceno legitimatemilitarypurpose for attacking any of the
over two hundredneutral ships damagedor destroyed duringthe period inquestion.
6.44 Instead,Iran suggests that a generalized atmosphereof regional hostility generated
by its war with Iraq provided it with a basis for attackingspecific,peaceful,neutral shippingin
the Gulf. It doesnot identiQ any neutral vesselas providing Iraq witha military advantage, nor
does it showany evidence of suchvesselsattacking Iranin any way. At the very most,the
hostility pervasive in the Gulf at thetime may have providedIran with a rationale to resort to
visit and searchof neutral vessels not accompaniedby a neutral warshipforthe sole purpose of
determining whether warmaterielwas being deliveredto Iraq525.No suchrationale is suggested.
524Reply, para 11.2.
525The SanRemoManual on InternationalLaw Applicable to Armed ConJ7ictsut Sea (ed. Louise
Doswald-Beck, 1999, acknowledges that neutral vessels are subject to visit and search by belligerents,
and paragraph 120, restates the customary exceptionsas follows:
Aneutral merchantvesselis exemptfromtheexercise ofthe rightofvisit andsearchifitmeetsthefollowing
conditions:
(a) it is boundfor a neutral port;
(b) it isnderthe convoy of an accompanyingneutral warshipof the same nationalityor a neutral warship
of a State with which the flag State of theerchant vessel has concluded an agreement providing for such
convoy;
(c) the flag Stateof the neutral warshipwarrants that the neutralrchantvessel is not canying contraband
or othenvise engaged in activities inconsistentwith its neutralstatusand
(d) the commanderof the neutral warship provides, if requestedby the commander of an intercepting
belligerent warship or military aircraft,1information as to the character of the merchant vessel and its
cargo as could otherwise be obtained byvisit and search.Instead,Iran suggests that a third State'smere economicrelationship with Iraq andpresence in
the shipping lane, rather than the supplyof military contraband,wouldjustiQ attacks by Iran on
that State526.Iran's claim has no basisin international law generallyandthe law of neutrality in
parti~ular'~~A. s one scholar noted shortlyafter the Iran-IraqWar:
"RegardingIranian attackson neutral shipping, consensus exists thatthese attacks --most
of which took place outside any proclaimed exclusionzone --could not bejustified even
underthe most liberalinterpretation of international la^^^'."
B. IRAN'S ACTIONV SIOLATET DHELAWOFARMED CONFLICT
6.45 Iran's attackson U.S. and other neutral shipsviolated basicrules of the law of
armed~onflict~~~.
6.46 Iran targeted civilianobjects. Al1but one ofthe vessels for whichthe United States
seeks darnagesin its counter-claim weremerchant vessels that cannotbe characterized as
military objectives under the law of armed conflict. They did not "makean effective
contribution to military action"andtheir "total or partial destruction, capture,or neutralization, in
526See Reply, para. 11.("...an aggressor isjust as much assisted by moneyas it is by munitions.)
527Economicrelations - aside fromtrade in war materie- are not prohibited underthe law of neutrality,
nor does they compromise the neutral status of ships not canying war materiel. Forthe leading texts on
the law of neutrality,e Counter-Memorial,paras. 6.21-6.22.
528BoleslawAdam Boczek, "TheLaw of Maritime WarfareandNeutrality inthe Gulf War," in The
Persian Guif War:Lessonsfor Strategy,Law, and Diplomacy,pp. 173, 185(ed.,Chrisopher C. Joyner,
1990).
529See Counter-Memorial, paras. 6.19-6.24. Iran
the circumstancesruling at the time, [didnot] offer a definitemilitary advantage" toIrans3'.
thus violated one ofthe central principles ofthe law of armed conflict prohibitingthe targeting of
non-military objectives. As stated in the San RemoManualon International Law Applicableto
Armed ConJlictsatSea:
"Attacksshallbe limited strictlyto military objectives. Merchantvessels and civil
aircraft are civilian objects unless they are military objectives in accordance withthe
principles and rules setforth in this documents3'."
There is no questionabout the centrality of this principleinthe lawof armed conflict. As this
Court noted in theNuclear WeaponsAdvisoryOpinion,
"The cardinal principles containedinthe texts constitutingthefabricof humanitarianlaw
are the following: The first is aimed atthe protection of the civilian population and
civilian objects and establishesthe distinction between combatants and non-combatants;
States must never makeciviliansthe object of attack andmust consequentlyneveruse
weapons that are incapableof distinguishing between civilian and military target~'~~."
Iran, in clear violation of the fundamentalprinciples reaffirmedby this Court, attacked civilian
vessels, damagingcivilian property and, more seriously, killingand injuring civilians.
6.47 Specificrules govern attacks onmerchant vesselsonthe high seas. TheSan Remo
Manual sets outthe customaryrules as follows:
"Merchantvessels flyingthe flag of neutral Statesmay not beattacked unless they:
530AdditionalProtocol 1,Article52(2).
53'San Remo Manual on International LawApplicable tuArmed Conjlicts ut Sea (ed.LouiseDoswald-
Beck, 1995),para.41, p. 15.
532Legality of the Threat or Useof Nuclear Weapons,Advisory Opinion, I.C.J. Reports 1996, para.78. (a) are believed on reasonablegroundsto be carryingcontrabandor breaching a
blockade, and afterprior warning they intentionallyand clearly refuseto stop, or
intentionally andclearly resist visit,searchor capture;
(b) engage in belligerent actson behalf of theenemy;
(c) act as auxiliariesto the enemy's armedforces;
(d) are incorporated intoor assist the enemy's intelligencesystem;
sail under convoyof enemy war ships or military aircraft; or
(e)
(f) othenvise make an effective contributiontothe enemy's militaryaction,
e.g., by carryingmilitary materials, andit is not feasible forthe attacking forces to
first place passengersandcrew in a placeof safety. Unless circumstancesdo not
permit, they areto be given a warning, sothatthey can re-route, off-load, or take
other precaution~~~~."
Iran makes no claim that its attacks satisfiedany of thesecriteria. It simplyhad no legitimate
basis on which to attack neutralmerchant vessels.
6.48 It is of course truethat damage and injuryto civilians may result fromthe conduct
of military operations. The customaryrule of proportionalityis statedin Article 51(5)(b)of
Additional ProtocolI of the 1949Geneva Conventions,whereit is prohibited toconduct "an
attack which may be expected to cause incidental lossofcivilian life, injury to civilians, damage
to civilian objects, or a combinationthereof, whichwouldbe excessive in relation tothe concrete
533SanRemoManual onInternationalLawApplicable toArmed ConflictsutSea (ed.Louise Doswald-Beck,
1995), para.67, pp. 21-22.and direct military advantageanti~ipated~~~.I"ran's attacks werenot onlydisproportionate:it
clearly directed its attacks against civilian objectives, in contraventionof thelaw of armed
conflict.
6.49 Customary international law specificallyaddressesthe use of navalmines against
civilian objects. Generallyspeaking,the lawprohibitsmaking civilian objectsthe object of
atta~k~~~ T"heSan Remo Manual restates the lawapplicablein armed conflict:
"The layingof armedmines or the arming of pre-laid mines mustbenotified unless the
mines can only detonate against vesselswhichare military objectives536."
Iran did not noti@that ithad laid armed mineson the high seas. Nor did it employmines that
can only be directed against military objectives. Rather,the evidence conclusivelyshowsthat
Iran directed itsmines againstneutral vessels individually andin convoys,without notiQing the
shipping community or neutralstates that ithad laid the mines.
6.50 Failure of notificatioor warning. The elementof notice orwarning is widely
considered essential to thelawfuluse of navalmines. This Court has twicerecognized that
notification ofthe presence ofnaval mines in waters traversed by vesselswitha right of passage
534See also San Remo Manual onInternationalLawApplicable toArmed Conjlictsut Sea (ed. Louise
Doswald-Beck,1993, para.46(d).
535AdditionalProtocol 1,Article52(1).
536San Remo Manual on InternationalLaw ApplicabletoArmed Conflicts atSea(ed.LouiseDoswald-
Beck, 1999, para.83.derives from "elementaryconsiderations of h~manity~~~ ...." The 1907 Hague Convention
Relativeto the Laying of Automatic Submarine Contact Mines, widely recognized as reflecting
principles of customary international law, recognizes that States laying naval mines must noti@
their presence to ship owners and Governn~ents*~~.Iran failed to notify any neutral vessels or
govemrnents of the presence of these mines.
6.5 1 By failing to notify neutral ships and States, Iran guaranteed that it would also
violate the principle that "minelaying States shall pay due regard to the legitimate uses of the
high seas by, inter alia, providing safe alternativeroutes for shipping of neutral States539." Since
Iran's method of warfare was designed to target neutral shipping, Iran blithely disregarded the
legitimate uses of the high seas.
537Cor- Channel,I.C.J.Reports 1949,p. 22. See alsoNicaragua,Merits,Judgment,I.C.J.Reports
1986, para. 215 (noting that where a State lays mines in waters "inwhich the vessels of another State
have rights of access or passage, andfails to give any waming or notification whatsoever, indisregard of
the security of peaceful shipping, it commits a breach of the principles ofanitarian law underlying
the specific provisions" of the 1907Hague Convention on contactmines).
538See Articles3 and 4, Hague Convention (VIII) Relative to the Laying ofAutomatic SubmarineContact
Mines, reprintedinAdam Roberts and Richard Guelff (eds.), DocumentsontheLaws of War,pp. 105-6.
One scholar notes that customary law "restrictions on the use ofnaval mines include that the general
location of minefields must be notified tol1States, belligerent as well as neutral, with as little delay as
possible, any such delay being related solely to the safety of the minelayingvehicles and not to the
achievement of military objectives, so that anyvesse1which wishesto avoid the mined waters may do so
with safety." James J. Busuttil,Naval WeaponsSystemsandtheContemporaryLaw of Warp. 78 (1998).
539SanRemoManualonInternationalLawApplicabletoArmedConJlictsatSea(ed. LouiseDoswald-Beck,
1995),para. 88. Section 2. DamagesWillBe the Subjectof a Subsequent Proceeding
6.52 Just as Iran requestedin its Memorials40t,he U.S. requestedin its initial presentation
ofthis counter-claim that issuesrelatingto reparationbe considered in a subsequent
pr~ceeding~~'.The United Statesis, however,in a positionto suggestto the Court some measure
of the scopeof injuries incurredas a direct result of Iran's breachof its treatyobligations. For
example, the United States incurredapproximately$50million in costs associatedwiththe
rescue, transport and repair of theUSSSamuelB.Robertsfollowing Iran's attackon it542.The
United Statesalso incurred significantcosts in deployingadditional forcesto the Gulf to protect
maritime commerceby escortingvessels, clearing minefieldsand other a~tivities~~I ~. addition
to such costs incurred directlyby the U.S. Government,the United Stateswill also be seeking
reparation for harm done to U.S.flagged and U.S.owned vessels and to U.S.cargo andU.S.
personnel. Additional costs and supporting evidencewill be presentedatthe appropriatetime.
540Mernorial, para.5.20.
54'See Counter-Memorialp ,ara.6.26.
542Q and A on USSSamuelB.Roberts Repair,21September1988,Exhibit120;PostOverhaulAnalysis
Reportonthe USSSamuelB. Roberts Repair,21 August1990,Exhibit121.
543See e.g.UnitedStatesGeneral AccountinO g fficeBurdenSharing:Allied ProtectionofShips inthe
Persian Gug in 1987 and 1988, September1990,pp. 1-13,Exhibit261. ThisReportwastohavebeen
included asExhibit 32 of the Counter-Mernoria bl,twasinadvertentlyomitted. SUBMISSIONS
On the basis ofthe facts and argumentsset out above,the Governmentofthe United
States of America requests that the Court adjudge anddeclare:
1. Thatthe United States didnot breach its obligationstothe Islamic Republic of Iran
under ArticleX, paragraph 1,of the 1955Treaty betweenthe United States and Iran, and
2. That the claims of the IslamicRepublicof Iran are accordinglydismissed.
With respectto its counter-claim,the United States requeststhat the Court adjudge and
declare:
1. Rejectingal1submissionsto the contrary, that, in attackingvesselsin the Gulfwith
mines and missiles and othenvise engaging in military actions that were dangerous and
detrimentalto maritime commerce,the Islamic Republic of Iran breachedits obligations
to the United Statesunder ArticleX of the1955 Treaty,and
2. That the Islamic Republic ofIranis accordingly underan obligationto make full
reparation to the United Statesforits breach of the 1955Treaty ina form and arnountto
be determinedby the Court at a subsequent stage of the proceeding. The United States reservesthe rightto introduceand presentto the Court in due course a
precise evaluation of the reparationowedby Iran.
23 March 2001.
JamesH.Thessin
Agentof the United States
OfAmerica TABLEOF EXHIBITS
Foreaseof referenceto al1documentssubmitted by the UnitedStates in tliiscase,the
exhibits listedbelow arenuinberedcontinuouslywith thosepreviouslysubinittedby tlie
United States,and beginwithnumber 180.
Statementof Thomas R. Moore,26 January 2001.
UnitedNations Security Council,Provisional Verbatim Recordof the 2541St
Meeting, 25 May 1984,UnitedNations Document SPV.2541.
Arab League, Text of Communique From Amman Summit, 11November 1987,
27 InternationalLegal Materials 1651(1984).
Gulf CooperationCouncil, Ministerial Statement, 17 May 1984, reprinted inBBC
Summaryof WorldBroadcasts, 19 May 1984.
LetterDated 22 September 1987 from the Permanent Representative of the United
Kingdom of Great Britain andNorthern Ireland to the UnitedNations Addressed
to the President of the SecurityCouncil, United Nations Document 919 147.
"British Protest", The Times(London), 27 January 1987.
LetterDated 1September 1987fiom the Permanent Representative of Kuwaitto
the United Nations Addressedto the Secretary-General, UnitedNations
Document SI19093.
LetterDated 15 October 1987fiomthe Permanent Representative of Kuwaitto
the United Nations Addressed to the Secretary-General, UnitedNations
Document SI19210.
LetterDated 16October 1987from the Permanent Representative of Kuwait to
the UnitedNations Addressed to the Secretary-General, UnitedNations
Document SI19215.
LetterDated 21May 1984fromthe Representatives of Bahrain, Kuwait, Oman,
Qatar, Saudi Arabia, and the United Arab Emirates Addressedto the President of
the Security Council, UnitedNations Document S/16574.
"Saudis Break Diplomatic Tieswith Iran, Citing Mecca Riotsand Gulf Raids",
The NewYorkTimes,27 April 1988.Letter Dated 26 October 1987fromthe PermanentRepresentativeof Egypt to the
United Nations Addressedto the Secretary-General,United Nations Document
Al421687,Sl19232.
Letter Dated 28 July 1988fromthe Permanent Representativeof Egypt to the
United Nations Addressed tothe Secretary-General,United Nations Document
Al431494,Sl20072.
United Nations SecurityCouncil,Provisional Verbatim Recordof the 2542nd
Meeting, 25 May 1984,UnitedNations DocumentSlPV.2542.
"Iranian Gunboats Fire on French Ship",TheTimes(London), 14July 1987.
"Iran faces prospect of isolationby East andWest", The Times (London),2 May
1987.
20 Ships Hit in Gulfin SixDays,Raising Fearsof Maritime Nations", TheNew
YorkTimes,4 September1987.
"Japan Protests to IranOver its SuspectedAttackson Vessels", Japan Economic
Newswire, 2 October 1987.
Governrnent of Norway, Cablereporting grotestto Iranian authorities, 10
February 1988.
"Greece Lodges Forma1Protestwith Iran on ShippingAttacks", PlatS Oilgram
News, 22 December 1987.
"Turkey Sticks to its GunsOverIranian Attackon Atlas 1Tanker", Platt 's
Oilgram News, 19March 1986.
United Nations SecurityCouncil,Provisional Verbatim Recordof the2545~
Meeting, 30 May 1984,UnitedNations DocumentSPV.2545.
United Nations SecurityCouncil,Provisional Verbatim Recordofthe 2543'd
Meeting, 29 May 1984,UnitedNations DocumentSPV.2543.
Islamic Republic ofIranNaval Forces, JointSeaCoast 1Combat Group
(Operations) Sea Coast 1Operations PlanGhadir.
Anthony H. Cordesmanand AbrahamR. Wagner, TheLessons ofModern
Warfare, Volume II: TheIran-Iraq War(1990).
USSCrommelin, DeckLog Book, commencing0000,Ol August 1987and ending
2400,3 1August 1987.USSKlackring, Deck Log Book, commencing 0431,10 October 1987and ending
2400, 14October 1987.
Statement of Thomas Flamminio, 7 March 2001.
U.S. overhead imagery of the Faw area, dates as indicated on images.
Statement of Mark Pitt, 1March 2001
Reference Map from Statement of Mr. Mohammad Youssefi (Iran's Reply,
Volume VI), annotated by the United States to indicate correct orientation of
missile sites.
Statement of Robert O. Phillips, 27 February 2001
Statement of Edward O. Price, 2 March 2001.
Charles H. Sullivan, Department of StateStandard Dra3 (Analysisand
Background),TreatyofFriendship,Commerceand Navigation.
Drafi Treaty of Friendship, Commerce and Navigation Betweenthe United States
of America and the Republic of Portugal (annotated version), May 1949.
Cable from SecretaryDulles to American Embassy Tehran, 22 June 1954.
Cable from State Department to American Embassy Tehran, 23 July 1954.
Cable from Department of State to American Embassy Tehran, 3 November 1954.
Senate Report, 84thCong., 2d Sess.,"Commercial Treaties with Iran,Nicaragua,
and the Netherlands," 9 July 1956.
Ronny E. Jones, StateDepartment Practices Under US. TreatiesofFriendship,
Commerce,andNavigation, August 1981.
F. Stroud, Stroud'sJudicial Dictionary of Wordsand Phrases, 3'ded. 1951
E.A. Wurtzburg, Whartons Law Lexicon, 12&Ed. 1916.
ChamplinRe$ning Corp. v. Corporation Commission of Oklahoma,286 U.S. 210
(1932).
Carter v. Carter Coal Co., 298 U.S. 238 (1936).
Northern NaturalGas Co. v.State Corp. Comm'nofKansas, 372 U.S. 84 (1963).225. Comments on Statement of Mr. Sayed-Hossein Hosseini.
226. World Customs OrganizationHarmonized Commodity Description and Coding
System Headings 27.09 and 27.10 and explanatory notes thereto.
227. European Union, Council Regulation (EEC) 3576192on the definition of the
concept of 'originating products' applicableto certain minera1products andto
certainproducts of the chemical orallied industries, within the frarneworkof the
preferential tariff arrangements grantedby the Community to third countries,
1992O.J. (L 364).
228. United States, Code of Federal Regulations, Volume 19,Sections 102.11-102.20.
229. Hawkins, H., Commercial TreatiesandAgreements: Principle and Practice
(1951).
230. "Vital U.S. Interests in the Persian Gulf', Statement by President Reagan, 29 May
1987.
231. Caspar W. Weinberger, A Report to the Congress on Security Arrangements in
the Persian Gulf, 15June 1987.
232. Statement on Iran-IraqWarand Freedom of Navigation in the Gulf, 9 June 1987.
233. StenaConcordia Deck Log Book, 22 December 1987and 23 December 1987;
StenaExplorer, Deck Log Book, 19June 1988; "Gunboat Attacks Gulf Shuttle
Tanker", Lloyd's List, 7 November 1987.
234. Statement of John P. Glennon,22 February 2001; Esso Demetia Bills of Lading
and Invoices.
235. "Minedtanker prompts U.S. Navy review", Lloyd'sList, 25 July 1987.
236. "TankerHits Mine at Gatewayto Gulf', Lloyd'sList, 11August 1987; "Iranian
Influence Mines Add to Threat in Gulf', Jane'sDefense Weekly,22 August 1987.
237. Statement of Fredric S. London, 9 January 2001; OMI Certificate of Incorporation
andSungari Certificate of Ownership and Encumbrance.
238. "Tankeris Hit in Iranian Missile Attack off Kuwait", Lloyd's List, 16October
1987;"Attack on US-registered Kuwaiti tanker: Iranian president's comments",
BBCSummaryof WorldBroadcasts, 17October 1987.
239. SungariDeck Log Book, 15October 1987.
240. Statement of Norman Hooke, 27 February 2001."Kuwait Lashes Iran Over Tanker Attack" Lloyd'sList, 17October 1987.
LucyCertificatesof Registry and of Ownership and Encumbrance; Diane
Certificates of Registry and of Ownership and Encumbrance; OSG Annual Report
title page and list of wholly-owned subsidiaries.
"IranianAssault Craft Attack Three Vessels", Lloyd'sList, 17November 1987;
Manchester Guardian Weekly,22 November 1987.
"New Iran hit and run tactic," Lloyd's List, 26 October 1987.
Interna1Exxon transmissions regarding Esso Freeport, 17November 1987
"Three more vessels attacked by Iranian speedboat", TheXinhua General
Overseas NewsService, 16November 1987;"Two tankers attacked in Gulf ',
TASS,16November 1987.
"U.S.-ownedtanker attacked in Gulf," Lloyd'sList, 8 February 1988; Liberian
Registered Tanker is Attacked in the Gulf, TASS,7 February 1988;"Iranian
gunboats attack tanker in gulf', TheXinhua General Overseas News Service,7
February 1988.
Diane Deck Log Book, 7 February 1988.
Statementof General Average on Esso Demetia; Certificate of Esso Demetia
cargo oil and fuel loss; Exxon cable, 13June 1988.
"IranResumes Attacks," Lloyd'sList, 13 June 1988; "UK Protest to Iran",
Financial Times,14June 1988.
OPEC 1989Annual Statistical Bulletin
"ShippingRuns the Gulf Gauntlet", Lloyd's List,8 January 1988.
"Waiting Gulf Ships to Pay War Premium", Lloyd's List,12August 1987;
"Tehran StrikesRevenge Blow at US: Missile Attack Seen as Retaliation to Oil
Platform's Destruction",TheGuardian, 23 October 1987.
"Cargo Rates Rise for Gulf War Risk Areas," Lloyd's List,15August 1987.
George K. Walker, The Tanker War, 1980-88:Law and Policy, International Law
Studies, Volume 74Naval War College, Newport, Rhode Island (2000).
Lauritzen v.Larsen, 345 U.S. 571(1953).257. Nat' Marine Engineers'BeneJicialAss'n v.Burnley, 684 F. Supp.6 (D.D.C.
1988).
258. Diplomatic Note fromLiberia, 6 June 1997.
259. United States Code, Volume 46 Appendix,Section 1242(a).
260. United States Code,Volume46 Appendix, Section 1282.
261. United States General Accounting Office,Burden Sharing:AlliedProtection of
Ships in the PersianGulf,September 1990.
Rejoinder submitted by the United States of America